¶1(concurring). I concur with Mr. Justice Bowling that the contract testified to by the plaintiffs may be construed as an employment to sell a contract for the purchase of real esate, and not to sell the real estate itself, and that it is for that reason not obnoxious to chapter 128, Laws of 1901. It follows that the judgment must be reversed since the justice expressly based his judgment for defendants upon the ground that the statute referred to applied to the agreement between the parties. A's there must be a new trial it may not be amiss to point out some reasons why, under the present pleadings and evidence, it might be found difficult to sustain a judgment for the plaintiffs. The summons, oral complaint and bill of particulars all lend color to the belief that plaintiffs supposed that they were employed to sell the real estate itself, and were entitled to full commission on the purchase price of the real estate. The evidence is to the effect that defendants, having obtained a contract for the sale to them of certain real estate, authorized plaintiffs to sell that contract and fixed the sum of $1,000 as the price at which they were willing to sell. Assuming that this was the agreement, and that plaintiffs did procure a purchaser who was willing to pay $1,000 for defendants’ contract (and it is only upon this assumption that plaintiffs can recover at all) the plaintiffs’ commission should be calculated upon the price at which the defendants were to sell the contract and not upon the price to be received by the original vendor in the contract with defendants. According to the plaintiffs’ testimony, however, they were not to be compensated by the payment of a commission calculated upon a percentage basis, but were to receive all that they could realize upon the. sale of the contract over $1,000. If they sold it for no more than $1,000 they would be entitled to receive nothing. By employing plaintiffs to sell the contract the defendants did not debar themselves from selling it themselves if opportunity offered. So long as *398plaintiffs did not produce a purchaser at $1,000 or over; the defendants had a perfect right to sell themselves or through another broker, without incurring liability to plaintiffs providing timely notice was given them. The view of the testimony most favorable to plaintiffs, is that they procured a purchaser who would give $1,500 for the contract, but that they .advised defendants that the purchaser would pay $1,000 for it. It may be that they adopted this course because they considered that it made no difference to defendants how much the purchaser paid over $1,000, since all over that sum was to go to plaintiffs as compensation. In my opinion, however, the defendants were entitled to be informed of the exact facts as to the proposed purchase if, for no other reason, that they might know whether or not they could safely sell to another purchaser. They were entitled to rely upon what plaintiffs told them, and being told that- the proposed purchaser would pay $1,000 for the contract, they were justified in believing that they were doing no injury to plaintiffs by selling to another, because at the offer as communicated to them by plaintiffs there was no margin of profit for plaintiffs, and they would not therefore be damnified if they lost the sale. While, therefore, I concur in the reversal of the judgment I do not desire to be understood as conceding that the plaintiffs established their right to the judgment demanded.
¶2Judgment reversed and new trial ordered, with costs to appellants to abide event-.