Bruce, J.
(after stating the facts as above). The question before this court is whether the defendant was entitled to a commission of 10 per cent on the sale of the threshing machine in question, and by the terms of his contract of agency. Plaintiff and appellant contends that he is not, as the machine was not sold for cash, but an old threshing machine was taken in part payment thereof, and the contract of agency expressly provides that “no commission shall be paid . . . upon goods sold or exchanged for other goods on account of alleged defects; nor upon sales made where other goods or property is taken in trade or as part payment, unless at the option of the company said dealer accepts such goods or property as his commission, and promises in writing to pay the company at the time of the delivery and settlement the amount necessary to make up the net price of the new goods; nor upon any sale not recommended by the dealer in writing upon the company’s 1910 order blanks; nor upon any goods sold to purchasers [30]*30wbo seek to purchase at the company’s factory, transfer agency, or branch house, unless accompanied by the dealer.”
Defendant, on the other hand, claims that such provision, even if applicable to the sale before us, is void as against public policy; and that, seeing that the company’s officers completed the sale, the defendant should not be deprived of his commission because they saw fit to take a secondhand engine in part payment. If the evidence had shown in this case, as it does not, that the defendant had furnished a buyer' who at the time he was presented to the company was ready and willing-to make a cash purchase or the equivalent thereof, but was afterwards permitted by the company to modify such officer or agreement to the extent of turning in a secondhand machine as part of the purchase price, we would have been confronted with a very different proposition than that which is now before us.
Defendant, however, clearly relies and sues upon his contract of agency and for the 10 per cent commission which is allowed thereby,, and there is no proof whatever in the record that the purchaser ever at any time agreed with anyone for a cash purchase or for the equivalent, thereof; and there is therefore no showing that the defendant was ever at any time, under such contract, entitled to the 10 per cent commission which he sues for.
This contract was a “dealers” contract. It granted to the dealer and “in consideration of the premises” permission “to take orders for its (plaintiff’s) machinery, extras, supplies, and repairs.” It nowhere, except in the provision hereinbefore referred to, makes any mention of deals for anything but cash or properly secured notes. It expressly provides that machinery shall be delivered “only for cash, or to responsible purchasers who give ample security for all time payments with interest thereon;” that written orders shall be taken for all machinery, “whether for cash or notes, upon the company’s 1910 order blanks.” It speaks only of orders, and not of sales, as far as machinery is concerned, and these orders are to be sent to the company for acceptance. It provides for a commission of 10 per cent on orders for threshing-machines which are accepted; but it further contains the provision that “no commission shall he allowed for sales made where oilier goods or properly is talcen in as pari payment unless at the option of the company said dealer accepts such goods or property as his commission and [31]*31promises in writing to pay the company at the time of delivery and settlement the amount necessary to make up the net price of the new goods; nor upon any sale not recommended by the dealer in writing upon the company’s 1910 order blanks.” Counsel for respondent is not correct in his assumption that the contract provides for a 10 per cent commission unless an option to take the secondhand machinery is given to the agent. It positively states that no such commission shall be allowed unless the option is both given and accepted. It is therefore quite clear that the proof which was .adduced did not justify a recovery upon the cause of action which was sued upon, that is to say,, under the written contract of agency. Lowe v. Jensen, 22 N. D. 148, 132 N. W. 661; Yancey v. Boyce, 28 N. D. 187, 148 N. W. 539; Egan v. Burnight, — S. D. —, 149 N. W. 176; Huber Mfg. Co. v. Seabold, 14 Ind. App. 109, 42 N. E. 648; Reeves v. Watkins, 28 Ky. L. Rep. 401, 622, 89 S. W. 266.
It is claimed, it is true, that whether a commission shall be allowed in case of a trade is by the terms of the contract left to the option of the company, and that such a provision is harsh and one sided, and therefore void as against public policy. This question; however, we are not called upon to determine. All that is necessary to say is that, even if this clause of the contract had been stricken out, there is nowhere .in the contract a provision for any commission on anything but a cash sale or the equivalent thereof.
It is true that there is in the record proof of a conversation with an agent of the company in which an offer was made to allow the defendant the option of accepting the secondhand machine or of guarantying the sale thereof, and that during such conversation the .agent told the defendant that unless he accepted such option the deal could not be made; that the defendant told the agent that they (the company) would have his permission to break the deal, and that rather than guarantee the sale of the secondhand machine or accept it himself he would break the deal, would try and stop the deal right there, try and get Oelke to break the contract; that upon receipt of this statement from the defendant the agent informed him that he would take the matter up with Hanson, the branch house manager of the company, which he. did, and later came back and said he guessed it would be all right, that Hanson would let the deal go on through without any signing. [32]*32There is no evidence, however, that commissions were spoken of during these transactions. In fact, the defendant testifies positively that they were not. Nor is there any evidence of any agreement to waive the provision in the contract which provided that no commission should be received in case of a trade.
On cross-examination the defendant testified:
Q. As I understand the testimony you gave, it was to the effect that Gonlogson asked you to take the old rig they traded in and pay the company the amount they had invested that they would have to have to make up their net?
A. Yes, sir.
Q. That was about the substance of it?
Q. And you refused to do that ?
Q. What did Gonlogson say then ?
A. He claimed that that was the order from the branch house manager, that he had told him to do that and he says, “I don’t know as I can vary from that,” and I said, “You will have to.” And we talked the matter over quite a while, and he says, “I will go and telephone and see what can be done;” and he came out and came back, and of course he wanted me to sign; but I said I wouldn’t; and he says, “I guess we will leave it go as it was. let the deal go on.”
Q. There was nothing said then as to what would be done with reference to your commission. He didn’t say anything about what commission you were to get ?
A. There was never at no time an agreement to take the secondhand rig. Never a time did I agree to take the secondhand rig. I didn’t .agree to it at all. That was what we argued about.
Q.
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Bruce, J.
(after stating the facts as above). The question before this court is whether the defendant was entitled to a commission of 10 per cent on the sale of the threshing machine in question, and by the terms of his contract of agency. Plaintiff and appellant contends that he is not, as the machine was not sold for cash, but an old threshing machine was taken in part payment thereof, and the contract of agency expressly provides that “no commission shall be paid . . . upon goods sold or exchanged for other goods on account of alleged defects; nor upon sales made where other goods or property is taken in trade or as part payment, unless at the option of the company said dealer accepts such goods or property as his commission, and promises in writing to pay the company at the time of the delivery and settlement the amount necessary to make up the net price of the new goods; nor upon any sale not recommended by the dealer in writing upon the company’s 1910 order blanks; nor upon any goods sold to purchasers [30]*30wbo seek to purchase at the company’s factory, transfer agency, or branch house, unless accompanied by the dealer.”
Defendant, on the other hand, claims that such provision, even if applicable to the sale before us, is void as against public policy; and that, seeing that the company’s officers completed the sale, the defendant should not be deprived of his commission because they saw fit to take a secondhand engine in part payment. If the evidence had shown in this case, as it does not, that the defendant had furnished a buyer' who at the time he was presented to the company was ready and willing-to make a cash purchase or the equivalent thereof, but was afterwards permitted by the company to modify such officer or agreement to the extent of turning in a secondhand machine as part of the purchase price, we would have been confronted with a very different proposition than that which is now before us.
Defendant, however, clearly relies and sues upon his contract of agency and for the 10 per cent commission which is allowed thereby,, and there is no proof whatever in the record that the purchaser ever at any time agreed with anyone for a cash purchase or for the equivalent, thereof; and there is therefore no showing that the defendant was ever at any time, under such contract, entitled to the 10 per cent commission which he sues for.
This contract was a “dealers” contract. It granted to the dealer and “in consideration of the premises” permission “to take orders for its (plaintiff’s) machinery, extras, supplies, and repairs.” It nowhere, except in the provision hereinbefore referred to, makes any mention of deals for anything but cash or properly secured notes. It expressly provides that machinery shall be delivered “only for cash, or to responsible purchasers who give ample security for all time payments with interest thereon;” that written orders shall be taken for all machinery, “whether for cash or notes, upon the company’s 1910 order blanks.” It speaks only of orders, and not of sales, as far as machinery is concerned, and these orders are to be sent to the company for acceptance. It provides for a commission of 10 per cent on orders for threshing-machines which are accepted; but it further contains the provision that “no commission shall he allowed for sales made where oilier goods or properly is talcen in as pari payment unless at the option of the company said dealer accepts such goods or property as his commission and [31]*31promises in writing to pay the company at the time of delivery and settlement the amount necessary to make up the net price of the new goods; nor upon any sale not recommended by the dealer in writing upon the company’s 1910 order blanks.” Counsel for respondent is not correct in his assumption that the contract provides for a 10 per cent commission unless an option to take the secondhand machinery is given to the agent. It positively states that no such commission shall be allowed unless the option is both given and accepted. It is therefore quite clear that the proof which was .adduced did not justify a recovery upon the cause of action which was sued upon, that is to say,, under the written contract of agency. Lowe v. Jensen, 22 N. D. 148, 132 N. W. 661; Yancey v. Boyce, 28 N. D. 187, 148 N. W. 539; Egan v. Burnight, — S. D. —, 149 N. W. 176; Huber Mfg. Co. v. Seabold, 14 Ind. App. 109, 42 N. E. 648; Reeves v. Watkins, 28 Ky. L. Rep. 401, 622, 89 S. W. 266.
It is claimed, it is true, that whether a commission shall be allowed in case of a trade is by the terms of the contract left to the option of the company, and that such a provision is harsh and one sided, and therefore void as against public policy. This question; however, we are not called upon to determine. All that is necessary to say is that, even if this clause of the contract had been stricken out, there is nowhere .in the contract a provision for any commission on anything but a cash sale or the equivalent thereof.
It is true that there is in the record proof of a conversation with an agent of the company in which an offer was made to allow the defendant the option of accepting the secondhand machine or of guarantying the sale thereof, and that during such conversation the .agent told the defendant that unless he accepted such option the deal could not be made; that the defendant told the agent that they (the company) would have his permission to break the deal, and that rather than guarantee the sale of the secondhand machine or accept it himself he would break the deal, would try and stop the deal right there, try and get Oelke to break the contract; that upon receipt of this statement from the defendant the agent informed him that he would take the matter up with Hanson, the branch house manager of the company, which he. did, and later came back and said he guessed it would be all right, that Hanson would let the deal go on through without any signing. [32]*32There is no evidence, however, that commissions were spoken of during these transactions. In fact, the defendant testifies positively that they were not. Nor is there any evidence of any agreement to waive the provision in the contract which provided that no commission should be received in case of a trade.
On cross-examination the defendant testified:
Q. As I understand the testimony you gave, it was to the effect that Gonlogson asked you to take the old rig they traded in and pay the company the amount they had invested that they would have to have to make up their net?
A. Yes, sir.
Q. That was about the substance of it?
Q. And you refused to do that ?
Q. What did Gonlogson say then ?
A. He claimed that that was the order from the branch house manager, that he had told him to do that and he says, “I don’t know as I can vary from that,” and I said, “You will have to.” And we talked the matter over quite a while, and he says, “I will go and telephone and see what can be done;” and he came out and came back, and of course he wanted me to sign; but I said I wouldn’t; and he says, “I guess we will leave it go as it was. let the deal go on.”
Q. There was nothing said then as to what would be done with reference to your commission. He didn’t say anything about what commission you were to get ?
A. There was never at no time an agreement to take the secondhand rig. Never a time did I agree to take the secondhand rig. I didn’t .agree to it at all. That was what we argued about.
Q. You wouldn’t take the secondhand goods under any consideration as your commission ?
A. No, sir.
Q. Either in whole or in part ?
A. No. . . . I told him rather than guarantee the sale of a secondhand rig or accept it myself, that rather than do that, I would break up the deal. I would try and stop the deal right there, — try to get Oelke to break his contract.
[33]*33Q. At that time was there anything said that in the event you didn’t do that, whether or not you would get any commission?
A. No, nothing mentioned about commission. Never was mentioned until I asked Mr. Hanson if they wouldn’t give me a commission, and he said “No.” That was about a year or two after when Oelke paid for the rig.
It is, too, a significant fact that although the contract provided for the issuance of commission certificates in cases of sales which were paid for in notes in whole or in part, as in the case at bar, and which certificates were to be redeemed in cash when the purchase price was finally paid, no such certificates appear to have been issued to the defendant, nor does there seem to have ever been any demand therefor. In fact, no demand seems to have been made for any commission at all until at least a year after the balance of the purchase price had been paid. Even then there is no demand for a commission, but merely the question, “if they would not give me a commission.” The evidence, therefore, falls far short-of proving any agreement for the 10 per cent commission provided for by the contract, and it is on the contract that the action is brought.
The only theory, indeed, on which the judgment can be sustained is that the company waived the provision relating to the acceptance of or guaranty of the sale of the secondhand machine and that if this were waivéd there is an agreement in the contract independently thereof for a 10 per cent commission. The two clauses, however, must be taken together, and where is there in the contract any agreement for commissions in cases of trades ? The principal clause provides that “for each traction, portable or skid engine . . . sold, duly settled for, and delivered, ... a commission of 10 per cent.” The word “sell” is not synonymous with the terms “barter” and “dispose of.” It involves a money transaction. Mora v. Murphy, 83 Cal. 12, 23 Pac. 63; Re Carr, 16 R. I. 645, 27 Am. St. Rep. 773, 19 Atl. 145, 146; Phelps v. Harris, 101 U. S. 370, 381, 25 L. ed. 855, 859; Consumers’ Brewing Co. v. Norfolk, 101 Va. 171, 43 S. E. 336; 7 Adjudged Words & Phrases, 1st ed. 6407, 6408.
In addition to this we find that in the first clause of the contract the [34]*34dealer agrees to deliver machinery only for cash or to responsible purchasers who will give ample security for all time payments.
Even if the agent Gonlogson had authority to waive the provision which provides that commissions shall not be paid in cases of trades unless the sale of the article taken on such trade shall be guaranteed, and of this there is much doubt, still a new agreement for the payment of the 10 per cent commission or of any commission at all was necessary, as nowhere is there to be found in the contract any agreement to pay commissions except on cash sales or their equivalent. Plaintiff expressly claims that he is suing on the written contract and on the written contract alone, and there is no evidence of the reasonable value of the services claimed to have been rendered. Even, therefore, if there was a waiver of the option clause, such waiver in no way resurrected an agreement to pay a 10 per cent commission in cases of trades, for no such agreement is to be found in the contract.
We, too, find neither in the law nor in the contract itself any authority for any such new agreement or waiver. The contract expressly provides that no acceptance of an order “or the approval of any general agent, officer, or salesman of the company shall be deemed a waiver of any breach of duty or any stipulations of this agreement unless expressly so agreed hy the company in writing.”
Section 5382, Rev. Codes 1905, being §' 5938, Comp. Laws 1913, provides that “a contract in writing may be altered by a contract in writing or by an executed oral agreement, and not otherwise.” There is no such additional contract in writing in the case at bar, or at any rate no such contract is sued upon, nor do we find any proof of an execution of the alleged oral agreement, nor do we believe that there was any consideration therefor. The threat to cause a contract to be broken which the plaintiff was himself a party to, as he admits that on the visit to Fargo the taking of a secondhand machine was spoken of and discussed, can hardly be held to amount to a consideration. Not only is all of this true, hut no such waiver is pleaded or relied upon, and the only theory on which plaintiff in fact relied or could rely upon under the pleadings was the theory that the clause as to secondhand' machines was void as against public policy. He nowhere in his pleadings pleaded a waiver of the clause in question, and it is elementary that a plaintiff cannot show a waiver of performance or a modification [35]*35of any part of a contract without alleging it, and that the fact showing a waiver of a provision in a contract must be specially pleaded. 9 Cyc. 727.
We are not unmindful of the cases of Davis v. Huber Mfg. Co. 119 Iowa, 56, 93 N. W. 78; Woods v. J. I. Case Threshing Mach. Co. 155 Iowa, 177, 135 N. W. 399; and McGeehan v. Gaar, S. & Co. 122 Wis. 630, 100 N. W. 1072, in which commissions seem to have been allowed and on which the defendant places much reliance. In the case of Woods v. J. I. Case Threshing Mach. Co. however, there was no positive negation of the commission provided for in the case of a trade such as is to be found in the contract before us, while the holding in the case of Davis v. Huber Mfg. Co. is expressly repudiated by the sole and only authority upon which it is based, viz., § 966 of the 1st edition of Mechem on Agency, and in which the author says:
“These principles have been most frequently applied in the case of brokers employed to sell real estate, and a consideration of their application here will throw light upon the whole subject. A broker employed to sell real estate may be authorized and required by the terms of his undertaking not only to find the purchaser, but to procure from him a valid written agreement binding him to purchase upon the terms specified, and where this is his undertaking, unless the principal waives this condition by accepting the purchaser and selling to him, or otherwise, the broker has not earned his commissions until it is performed; but the authority and duty of the real estate broker, as ordinarily employed, do not go so far. As so employed, he has no implied authority to bind his principal by a written contract to sell the real estate, and, unless he contracts for more, it is no part of his implied duty to complete a binding contract with the purchaser. His duty is performed when he has found a purchaser who is ready, willing, and able to purchase upon the terms specified, or, if no particular terms were agreed upon, when he has produced a purchaser to whom the principal sells.”
Here, in the case at bar, the terms specified were cash or notes, and there was an express provision waiving the commission in case of a trade. The case as a whole, indeed, comes within the general rule of the same author, which is to be found in §§ 1513 and 1514 of his second edition, and in which he says: “Section 1513. Agree[36]*36ment to pay compensation — Express—Implied.—It is entirely competent for the parties to agree expressly not only that the agent shall be compensated for his services, but that his compensation shall be a certain sum, or shall be paid in a certain way, or shall be ascertained in a particular manner. It is also competent for them to agree that he shall be compensated only in a certain event, or that he shall' receive no compensation at all. Section 1514. Express Agreement Conclusive. — Wherever the parties have expressly agreed upon the fact that compensation shall or shall not be paid, or shall be paid only in a certain event, that agreement, in the absence of fraud or mistake of fact, is conclusive. If the principal has expressly agreed to pay a compensation, the fact that the service was, through no fault of the agent, of no value to him furnishes no excuse for not paying. So if the agent has expressly agreed to serve -without compensation, he will have no claim, for wages however beneficial his services may; have proved to the principal. And so if compensation is to be paid only in a certain event, or upon the happening of a given contingency, no claim can arise except upon the happening of the event or contingency agreed upon.”
When we examine also the case of McGeehan v. Gaar, S. & Co. supra, we find no provision which expressly negatives the allowance of a commission in cases of trades. In that case the court merely held that the plaintiff was entitled to the commissions which were provided for by the contract, and no more. It, in short, expressly upheld the terms of the contract, which provided: “If the agent takes anything in trade it is understood that he takes it on his own account, and 'the amount allowed for it comes out of his commission. If the amount allowed is more than his commission, he is to make up the deficiency;” and the whole recovery was based upon this provision. The salé or trade, like the one at bar, was one which the plaintiff himself had originally negotiated, but it was ultimately made and consummated by other agents of the company. “I think,” the court said, “that the facts bring the case within the provision that the plaintiff is entitled to such commissions as the contract contemplates.”
The judgment of the county court is reversed, with directions to enter judgment for the plaintiff for the amount sued for.