BiRdzell, J.
This is an appeal from a judgment in favor of the plaintiff for $1,200, interest, and costs in an action to recover a commission for the sale of real estate. • The action has been pending for 10% years, and this is the fourth appeal. The facts have been amply stated upon the previous appeals, and need not be restated in full here. See Paulson v. Reeds, 24 N. D. 211, 139 N. W. 1135, 33 N. D. 141, 156 N. W. 1031, and 39 N. D. 320, 167 N. W. 371. After the last remand to the district court, a stipulation was entered into whereby it was agreed that the case should be submitted to .the court, Hon. E. J. Graham, Judge, presiding, without a jury, and that it be submitted upon the testimony which had been transcribed in separate statements of the case as settled and allowed on appeals to this court. It was specifically stipulated that the court, in the decision of the questions involved, might consider the testimony with the same force and effect as though the wit[92]*92nesses were again sworn and the same testimony given in open -court. After considering the case, the court made findings of fact and conclusions of law favorable to the plaintiff, and ordered judgment accordingly.
The complaint alleges a cause of action upon an express contract. It states that on or about the 28th day of June, 1910, the plaintiff and defendant entered into an agreement whereby the defendant agreed to pay the plaintiff for his services in securing a purchaser for certain lands such amount as might be realized from the sale over and above $16 per acre, and that thereafter, on the same day, the plaintiff procured as a purchaser, one Huey, who was then ready, willing, and able to purchase the lands upon the terms agreed upon by the plaintiff and defendant, and who did so purchase them at the price of $17.50 per acre; whereupon, pursuant to the agreement, the plaintiff had earned the stipulated compensation of $1,200. It seems that just prior to the signing of the sale contract which the plaintiff had negotiated with Huey the plaintiff induced the defendant to sign a memorandum which has been referred to in the previous records as Exhibit A. The memorandum reads:
“Wyndmere, N. D.; June 28, 1910.
“Martin Paulson: — You are hereby authorized to sell my land, west one-half and S. E. quarter, section 21, and east 20 — 133—52, at ($16.00) per acre, net to me.
“J. A. Reeds.”
In the previous appeals the records have contained testimony showing that, at the time the sale contract, referred to at various times as Exhibit B, was signed by the defendant, the question was raised that it did not embody the terms which the defendant had previously agreed to accept, in that the cash payment was smaller and the interest rate less on the deferred payments than he had stipulated for in the listing agreement. The effect of this departure was to make the value of the contract less than “$16 per acre net” to the defendant according to the meaning which that expression was mutually understood to convey at the time it was embodied in Exhibit A. It has been the contention of the plaintiff that, notwithstanding the sale contract, Exhibit B, involved a departure from the listing terms previously agreed upon, the defendant, on June 28, 1910, accepted it as a fulfillment of the agency contract without any reduction in the commission; that the defendant accepted the aggregate consideration, amounting to $17.50 per acre, as not reduced by the smaller cash payment. [93]*93and the lower rate of interest on the deferred payments stipulated for in the sale contract, and that the only change affecting the commission was a1.1 agreement to defer its payment until November; whereas, it has been the contention of the defendant, on the other hand, that the plaintiff agreed on June 28th, at the time the sale contract was signed, that he, the plaintiff, would make up the difference between the value to the defendant of the sale contract actually negotiated and the value of one in strict accordance with the listing agreement.
At this point it is convenient to state the grounds of reversal upon the previous appeals. Upon the first appeal the plaintiff and respondent confessed error. The action having been brought upon an express-contract for $1,200, and the verdict and judgment being for less than that, it was the respondent’s contention that the recovery should have been either for the whole amount or for nothing. Upon the second trial the plaintiff recovered $1,200, but the court, in its instructions, gave controlling effect to the memorandüm of June 28th, Exhibit A above quoted, as against the remainder of the contract of the parties. In view of the testimony relating to the transaction taking place when the sale contract was signed, this was held to be prejudicial. In the third appeal it appeared to the majority of this court that the trial court had again effectually removed from the consideration of the jury the defendant’s version of the transaction of J une 28th in connection with the signing of the sale contract.
Upon this appeal the defendant challenges the findings of fact of the trial court, and contends that it appears as a matter of law upon the previous records that the plaintiff has no cause of action upon the express contract 'sued upon, but at most has an action for the quantum meruit. It is pointed out that the plaintiff’s own evidence show's that the sale contract with Huey involved a departure from the listing contract in the particulars hereinbefore stated, and from this it is argued that the plaintiff is not legally entitled to recover as upon a performance of the express contract. Upon the last previous appeal the substance of this contention was urged as a ground for directing the dismissal of the action. While this court reversed the judgment, it refused to direct a dismissal, saying (Paulson v. Reeds, 39 N. D. 329-341, 167 N. W. 371, 374):
“We do not agree with appellant’s counsel wherein he contends that, under the complaint, which alleged an express contract entered into on the 28th day of June, 1910, there can be no recovery under the evidence in this case. There was ample evidence from which the jury could have [94]*94found that the express contract upon which plaintiff sues was made. There was, therefore, no error committed in refusing to grant the motion for a directed verdict. As we view the record, all of the evidence descriptive of the transaction had at the time of the signing of the sale contract should have been left to the jury under proper instructions, and from it they would have been warranted in finding that the defendant expressly agreed to pay the plaintiff the full amount of his commission, or that he expressly agreed to pay him a portion only of the commission originally agreed upon, or that no agreement whatever was reached, in which event, under proper pleadings, the recovery would be limited to the quantum meruit.”
It also said, at page 339 of 39 N. D., at page 374 of 167 N. W.:
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BiRdzell, J.
This is an appeal from a judgment in favor of the plaintiff for $1,200, interest, and costs in an action to recover a commission for the sale of real estate. • The action has been pending for 10% years, and this is the fourth appeal. The facts have been amply stated upon the previous appeals, and need not be restated in full here. See Paulson v. Reeds, 24 N. D. 211, 139 N. W. 1135, 33 N. D. 141, 156 N. W. 1031, and 39 N. D. 320, 167 N. W. 371. After the last remand to the district court, a stipulation was entered into whereby it was agreed that the case should be submitted to .the court, Hon. E. J. Graham, Judge, presiding, without a jury, and that it be submitted upon the testimony which had been transcribed in separate statements of the case as settled and allowed on appeals to this court. It was specifically stipulated that the court, in the decision of the questions involved, might consider the testimony with the same force and effect as though the wit[92]*92nesses were again sworn and the same testimony given in open -court. After considering the case, the court made findings of fact and conclusions of law favorable to the plaintiff, and ordered judgment accordingly.
The complaint alleges a cause of action upon an express contract. It states that on or about the 28th day of June, 1910, the plaintiff and defendant entered into an agreement whereby the defendant agreed to pay the plaintiff for his services in securing a purchaser for certain lands such amount as might be realized from the sale over and above $16 per acre, and that thereafter, on the same day, the plaintiff procured as a purchaser, one Huey, who was then ready, willing, and able to purchase the lands upon the terms agreed upon by the plaintiff and defendant, and who did so purchase them at the price of $17.50 per acre; whereupon, pursuant to the agreement, the plaintiff had earned the stipulated compensation of $1,200. It seems that just prior to the signing of the sale contract which the plaintiff had negotiated with Huey the plaintiff induced the defendant to sign a memorandum which has been referred to in the previous records as Exhibit A. The memorandum reads:
“Wyndmere, N. D.; June 28, 1910.
“Martin Paulson: — You are hereby authorized to sell my land, west one-half and S. E. quarter, section 21, and east 20 — 133—52, at ($16.00) per acre, net to me.
“J. A. Reeds.”
In the previous appeals the records have contained testimony showing that, at the time the sale contract, referred to at various times as Exhibit B, was signed by the defendant, the question was raised that it did not embody the terms which the defendant had previously agreed to accept, in that the cash payment was smaller and the interest rate less on the deferred payments than he had stipulated for in the listing agreement. The effect of this departure was to make the value of the contract less than “$16 per acre net” to the defendant according to the meaning which that expression was mutually understood to convey at the time it was embodied in Exhibit A. It has been the contention of the plaintiff that, notwithstanding the sale contract, Exhibit B, involved a departure from the listing terms previously agreed upon, the defendant, on June 28, 1910, accepted it as a fulfillment of the agency contract without any reduction in the commission; that the defendant accepted the aggregate consideration, amounting to $17.50 per acre, as not reduced by the smaller cash payment. [93]*93and the lower rate of interest on the deferred payments stipulated for in the sale contract, and that the only change affecting the commission was a1.1 agreement to defer its payment until November; whereas, it has been the contention of the defendant, on the other hand, that the plaintiff agreed on June 28th, at the time the sale contract was signed, that he, the plaintiff, would make up the difference between the value to the defendant of the sale contract actually negotiated and the value of one in strict accordance with the listing agreement.
At this point it is convenient to state the grounds of reversal upon the previous appeals. Upon the first appeal the plaintiff and respondent confessed error. The action having been brought upon an express-contract for $1,200, and the verdict and judgment being for less than that, it was the respondent’s contention that the recovery should have been either for the whole amount or for nothing. Upon the second trial the plaintiff recovered $1,200, but the court, in its instructions, gave controlling effect to the memorandüm of June 28th, Exhibit A above quoted, as against the remainder of the contract of the parties. In view of the testimony relating to the transaction taking place when the sale contract was signed, this was held to be prejudicial. In the third appeal it appeared to the majority of this court that the trial court had again effectually removed from the consideration of the jury the defendant’s version of the transaction of J une 28th in connection with the signing of the sale contract.
Upon this appeal the defendant challenges the findings of fact of the trial court, and contends that it appears as a matter of law upon the previous records that the plaintiff has no cause of action upon the express contract 'sued upon, but at most has an action for the quantum meruit. It is pointed out that the plaintiff’s own evidence show's that the sale contract with Huey involved a departure from the listing contract in the particulars hereinbefore stated, and from this it is argued that the plaintiff is not legally entitled to recover as upon a performance of the express contract. Upon the last previous appeal the substance of this contention was urged as a ground for directing the dismissal of the action. While this court reversed the judgment, it refused to direct a dismissal, saying (Paulson v. Reeds, 39 N. D. 329-341, 167 N. W. 371, 374):
“We do not agree with appellant’s counsel wherein he contends that, under the complaint, which alleged an express contract entered into on the 28th day of June, 1910, there can be no recovery under the evidence in this case. There was ample evidence from which the jury could have [94]*94found that the express contract upon which plaintiff sues was made. There was, therefore, no error committed in refusing to grant the motion for a directed verdict. As we view the record, all of the evidence descriptive of the transaction had at the time of the signing of the sale contract should have been left to the jury under proper instructions, and from it they would have been warranted in finding that the defendant expressly agreed to pay the plaintiff the full amount of his commission, or that he expressly agreed to pay him a portion only of the commission originally agreed upon, or that no agreement whatever was reached, in which event, under proper pleadings, the recovery would be limited to the quantum meruit.”
It also said, at page 339 of 39 N. D., at page 374 of 167 N. W.:
“* * * The record in this case discloses clearly that the signing of exhibit ‘B’ by the defendant, under the circumstances, was an equivocal act, and one reasonably susceptible of the inference that Reeds was thereby expressing his agreement to the payment of a commission measured by the difference between the value of exhibit ‘B’ compared.to the contract originally contemplated, or an agreement by him to pay a reasonable commission, or, if the jury disbelieved his version and believed that of the plaintiff, that he was to pay the full amount of the commission originally agreed upon, but was to be given until November 13th following to pay it.”
The foregoing statements were deliberately made after a careful consideration of the conflicting evidence relating to the entire transaction of June 28th. In view of the pendency of this case for so long a time, it should not be assumed that this court at so late a date would have remanded the case for a retrial if it were of the opinion that in the state of ihe record no recovery could be had under the pleadings and the evidence. Neither should it be assumed that we would give but passing attention to a question going to the root of this protracted litigation. Our opinion remains the same. The foregoing quoted expressions became the law of die case, and we are not now disposed to enlarge upon the reasons for so concluding. It is unnecessary to review our former holdings to determine the credence that should be given the findings of the trial court in the light of the circumstances in which this case was submitted to the judge. There is abundant evidence to warrant findings that the defendant accepted the sale contract, Exhibit B, as a substantial compliance with the terms of the agency, and with knowledge that the plaintiff was claiming for negotiating the sale the full commission of $1,200. We are of the [95]*95opinion that the defendant became liable for the full commission if he in fact continued to recognize the plaintiff as his agent and signed the contract with Huey, knowing at the time that the listing contract had been in some respects departed from; provided that by his words or actions he manifested the intention to become bound for the full amount. See Red River Valley Land Co. v. Hutchinson, 41 N. D. 193, 170 N. W. 317; S. E. Crowley Co. v. Myers, 69 N. J. Law, 245, 55 Atl. 305. Whether or not he did so manifest the intention to become bound for the full commission presents a question of fact. The evidence does not warrant overturning the decision of this question by the trial court in favor of the plaintiff.
The judgment appealed from is affirmed.
CheistiaNSON, J., concurs.
Bronson, J., concurs in result.