¶1There can be no doubt that if the defendant had originally agreed to take $4,000. down instead of $10,000, the plaintiff ’ would have earned his commission. The defendant could not have escaped his obligation on that head by making new conditions after the broker had found a customer who was ready and willing to comply with the original conditions. Here the parties agreed upon the price, and also, as the jury have found, upon the amount to be paid upon the signing of the contract, namely, $4,000. The jury were authorized to find that at the moment when the defendant agreed to accept $4,000 down the minds of the parties finally met. The defendant did not then say that he would accept $4,000 down instead of $10,000,. provided the purchaser would permit the reservation of a right of way. That acceptance was unconditional, and it left the matter precisely as though .the defendant had originally told the broker that he would sell for $161,000 and would take $4,000 down. The subsequent insistance upon the right of way was an attempt to vary a completed verbal bargain. That is, it was competent for the jury to so regard it. I think the question on this head was fairly and properly submitted to the jury and that the judgment should he affirmed.
¶2Judgment and order reversed, new trial ordered, costs to appellant to abide event.