¶1Supplemental Opinion on Behearing.
¶2
¶3“We shall not stop to review them, but say that we think the contract in question comes more nearly within the rule laid down in such cases.”
¶4A majority of the court are now of opinion that sucli statement is not correct. The statement just quoted is, therefore, withdrawn. The writer of the opinion still thinks that the statement is correct, unless a different rule applies because of the provision in the contract between plaintiff and defendant which reads: “And the said Edward Thompson is to accept securities for same that I receive of Mrs. F. Sau-cerman.” That question was not discussed in the original opinion. Though the contract between Byan and Saucer-man, on the face of it, was executed, it is conceded that it was not consummated by them by an exchange of properties, and that no securities were received by Byan from Mrs. Saucerman. If it should be found, as claimed by defendant, that the contract was obtained by fraud, there would, of course, be no contract at all. If it should be found that the contract was not obtained by fraud, then the question is whether plaintiff would, in any event, be entitled to a money judgment, or whether he would only be entitled to *408a commission, if at all, out of the securities which Ryan receives of Mrs. Saueerman. Had the securities been turned over to Ryan, and he had refused to allow plaintiff his commission out of the securities, we would have a different proposition. But, under the contract and evidence in this case, we are of opinion, and hold, that, even though the contract was executed without fraud, a proper construction of it is that plaintiff is not entitled to a money judgment, but is only entitled to his commission, if at all, out of a specific fund: that is, out of the securities that Ryan should receive from Mrs. Saueerman. Plaintiff framed his cause of action on the theory that the appellant, Ryan, was wholly at fault, and that the customer, Mrs. Saueerman, was not at fault, but was ready, able, and willing to complete her contract. But the evidence shows that appellant, Ryan, was not at fault, and was ready,, able, and willing to perform his part of the contract with Mrs. Saueerman, and that she could not perform her part. She had placed it beyond her power to convey the property. Plaintiff was well acquainted with Mrs. Saueerman and her property and her affairs, and was a lodger in her home. It was competent for plaintiff to provide in his contract that the commission should be payable out of a specific fund, or securities, to be received by Ryan from Mrs. Saueerman; and, in that case, he would not be entitled to a commission except out of the securities, unless it should appear that the principal, Ryan, was at fault. We think the contemplation of the parties was that plaintiff should receive his commission out of the securities.
¶5Ormsby v. Graham, 123 Iowa 202, 213, 215, was an action for specific performance, in which the agent was made defendant, and he, by cross-petition, asked judgment for his commission. The contract provided, in substance, that the agent was to use all proper efforts to sell, upon the stated terms and conditions, to draw all papers necessary to consummate the sale, and to pay over the cash payment re*409ceived, less commission and expenses. The owners, on their part, were to execute and deliver a deed when the land was sold, and to allow the agent the stipulated “commission, to be retained in full out of the cash payment,” or, “if the payment does not pass through the agent’s hands, then appellants are to pay the commission directly.” The contract in that case is not precisely like the one in the instant case, in that, in this cáse, there is no provision in the contract that the owner is to pay the commission directly, if the cash payment does not pass through the agent’s hands. The other provision in each is somewhat similar. There, he was to retain his commission out of the cash payment. In the instant case, the contract provides that Thompson is to accept securities for his commission that are received from Mrs. Saucerman. In the Ormsbycase, the different rules are stated, as applied to different contracts; and it was held that the agent’s action was based upon a special contract of agency to sell. That a completed sale, as a basis for the recovery of commissions, was contemplated by the parties, was shown in the stipulation, which authorizes the agent to retain his compensation from the first cash installment, from the price for which the property ¡might be sold. The opinion refers to a similar case in Cremer v. Miller, 56 Minn. 52, where the commission was to be the excess obtained over a fixed net price. It was there held that a sale should be consummated, before an action by the agent could be sustained. In the Ormsbycase, other reasons were given for not allowing the commission, but they do not bear so strongly on the question now before us as the one we have given.
¶6Robertson v. Vasey, 125 Iowa 526, is somewhat similar to this. In that case, the contract was construed to mean that payment of the agent’s commission was dependent upon the payment of the purchase price of the land, and that the commission and land contracts should be construed together, so far as they relate to the purchase price. As bear*410ing upon this question, appellant cites, also, Columbia Realty Inv. Co. v. Alameda Land Co., 87 Ore. 277 (168 Pac. 64); Owen v. Ramsey, 23 Ind. App. 285 (55 N. E. 247) ; Manton v. Cabot, 4 Hun (N. Y.) 73; McPhail v. Buell, 87 Cal. 115 (25 Pac. 266); Campbell v. Cove Ranch L. & L. Co., 28 Ida. 445 (155 Pac. 662); Wilson v. Rafter, 188 Mo. App. 356 (174 S. W. 137); Lindley v. Fay, 119 Cal. 239 (51 Pac. 333); Roach v. McDonald, 187 Ala. 64 (65 So. 823).
¶7We shall not take the space or time to refer further to such cases. What has been said herein qualifies in like manner the last paragraph of the opinion in regard to interest. Interest would not be allowed, in any event, unless the securities were received. As modified by this supplement, the original opinion will stand, and the petition for rehearing is overruled.