¶1concurring:
¶2I concur in the order of reversal, but upon a somewhat different theory from that of my esteemed associate.
¶3Brushing aside superfluities, the facts are that the plaintiff obtained from defendant an option upon a group of mining claims, with the privilege of purchasing them for $75,000, to be paid out of the net proceeds of the ore shipped from the development. At the same time, he obtained an agreement, reciting the execution of the option, with the understanding that the plaintiff' was “going to endeavor to sell the said mining claims to other parties, for the purpose of making a commission on the transaction,” wherein it was agreed that, in the event of plaintiff’s effecting such a sale to “other parties” for the sum of $75,000, he should receive a commission of 12 per cent. The option agreement was later modified so as to have it run to the plaintiff and J. T. Goodin, with the further provision that the optionees should do 1,200 shifts of work “upon the property per annum, and that such work should begin not later than September 10, 1917. On September 7, 1917, the defendant notified Goodwin and associates that he had elected to declare the option forfeited, and that, if they entered upon -the property to do any work thereon, they would be forcibly ejected. The foregoing are undisputed facts.
¶4The complaint alleges:
*447“Fifth — That plaintiff, acting under and in pursuance to said agreements hereinbefore mentioned, performed services in obtaining and did obtain purchasers of the rights conferred and granted by the said agreement, hereinbefore referred to and marked Exhibit A, and by the agreement hereinafter referred to and marked Exhibit C, and of the mining claims, leases and options therein mentioned and described and thereby agreed to be sold and assigned to plaintiff. And the purchasers so obtained were obtained by plaintiff prior to the breach and cancelation of said contracts by the defendant, as hereinafter alleged, ■ and before the time provided in said contract had expired; and said purchasers so obtained were ready, willing and able to take and assume said contracts and all rights thereunder on the terms therein provided.”
¶5Paragraph 12 of the complaint alleges that, because of the said cancelation and rescission, the plaintiff had been damaged in the sum of $9,000. An answer was filed denying the material allegations of the complaint, except as to the undisputed facts stated.
¶6After the trial the court made findings of fact favorable to the plaintiff, and entered judgment accordingly for $9,000. This appeal is from the judgment alone; hence we have not the evidence before us.
¶7In reply to the charge made by counsel for appellant, in their opening brief, that the record as made by the plaintiff is uncertain and confusing, and that it' is impossible to ascertain therefrom the plaintiff’s theory of the case, counsel for respondent say:
“Respondent’s position is that he, having fully complied with all the terms of the agreement and being prevented by appellant from going ahead and consummating the deal, that he became immediately entitled to the commission which would eventually have been paid to him, and which he had already earned under the terms of the contract.”
¶8From the view-point thus stated, the findings will be considered and the law applied. The court found the *448undisputed facts to be as above stated; that the option was given for a valuable consideration; that the plaintiff had spent time and money in endeavoring to find a purchaser, and that, after several fruitless attempts, he organized what was known as the “Second Syndicate,” composed of himself and four others. The court further found:
“That the plaintiff, acting under and in pursuance of the written agreements hereinbefore designated as Exhibit A, Exhibit B, and Exhibit C, performed services in obtaining, and did obtain, purchasers of the property, premises, rights, and privileges conferred and granted to him by said written agreements and of the mining claims, leases, and options therein mentioned and described and thereby agreed to be sold and assigned to the plaintiff prior to September 1, 1917. That the purchasers so obtained were men forming the association hereinbefore designated as the “Second Syndicate,” and they were ready, willing, and able to take and assume said written agreements and all rights thereunder on the terms therein provided, and they were ready, willing and able to purchase and take over the property and premises of the defendant which he had agreed to sell and convey to the plaintiff, and upon the terms and conditions provided in the -written agreement made by the plaintiff and the defendant.”
¶9Also:
“That the plaintiff expended time, effort, and money and paid money to the defendant in good faith in the course of his acts performed under and by virtue of the written agreements made and entered into by and between him and the defendant, and in the course of his attempts tó fulfil said contract in the respects by him to be fulfilled.”
¶10That said syndicate “arranged to provide money to take over the premises … and to work and handle the same, to the extent of $4,500. That they likewise arranged for an additional credit in the sum of $4,000.” *449The court also found that the defendant declared the option forfeited, and notified Goodin and others that he would forcibly eject them if they sought to enter upon the property.
¶11Paragraph 5 of the complaint amounts to nothing more than an allegation that the plaintiff had found persons willing, ready, and able to assume his rights under the option agreement, and the finding of the court is in accord with this interpretation of the allegation mentioned. Assuming that the option was given for a valuable consideration, or because of work done or money expended in pursuance of its terms, either by the plaintiff or by the “Second Syndicate,” as found by the court, the cancelation thereof by the defendant, if an infringement' iupon the rights of the members of said syndicate, would afford grounds for a cause of action by the “Second Syndicate.” Respondent relies upon the nule stated in 4 R. C. L. 315, as follows:
“While, as above shown, according to the great weight of authority the mere procuring of one to take an option does not entitle the broker to commission if the optionee elects not to exercise the same, yet it is apparently well settled that the broker is entitled to his commission if the option is actually exercised or the optionee is willing, to exercise it, but is prevented from doing so by the refusal of the owner to comply with his part of the agreement.”
¶12
¶13“The privilege given in options to the holder either to enforce or cancel the contract does not prevent him from obtaining the specific performance of the contract, provided the option itself is founded on sufficient valuable consideration.” 25 R. C. L. 235, 236.
¶14In Schroeder v. Gemeinder, 10 Nev. 364, it is held:
*450“A court of equity, in actions for the specific performance of optional contracts and covenants to lease or convey lands, will enforce the covenant, although the remedy is not mutual, provided it is shown to have been made upon a fair consideration, and where it forms part of a contract, lease, or agreement that may be the true consideration for it.”
¶15This, it is believed, is sound doctrine. If an optional contract will support an action for specific performance, the wrongful forfeiture of the contract by the optionor should be a ground for a cause of action. In House v. Jackson, 24 Or. 89, 32 Pac. 1027, it was held that an optionee, for a valuable consideration, was actually seized of the estate, and, as a consequence, might sell the same before a conveyance had been executed to him, notwithstanding an election to complete the purchase rested entirely with the purchaser. However, in determining this case, it is not necessary for us to go the length to which the Oregon court seems to have gone.
¶16
“If one employ a firm of real-estate brokers to procure a purchaser for certain real estate, and the brokers procure a sale thereof to a syndicate of which one of the brokers is a member, the brokers cannot collect commission for such a sale unless it is made to appear that the principal, knowing the interest of one of *451such brokers (his agent) in the syndicate purchasing the property, specially undertook and agreed to compensate them for making the sale.”
¶17Sustaining this- rule are the following cases: Stewart v. Mather, 32 Wis. 344; Sterling E. & C. Co. v. Miller, 164 Wis. 196, 159 N. W. 732; Finnerty v. Fritz, 5 Colo. 174; Christianson v. Mille Lacs L. & L. Co., 113 Minn. 120, 129 N. W. 150, 31 L. R. A. (N. S.) 536, Ann. Cas. 1912a, 200.
¶18The commission agreement, providing as it does that it is given for the purpose of effecting a sale to “other parties,” makes the rule of exceptional force in the instant case.
¶19The plaintiff being a member of the “Second Syndicate,” the judgment should be reversed.