found 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 15th 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 the 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 the 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
