The material facts are substantially as follows: The defendant produced a prospective purchaser of land to respondent’s. cashier. Defendant was to have as his commission in case of sale, $1 per acre and all received above $35 per acre. The purchaser was willing to pay $37.50 per acre. Therefore the commission on the sale was $3.50 per acre. On October 18, 1916, the plaintiff sold to one Frank S. Dom, the proposed purchaser, the west half of section 8, township 152, range 80, and drew what may be termed a preliminary unilateral contract, signed by the bank only, in which were stated the terms of sale. It seems the bank did not own the southwest quarter of section 8, and in this contract stated as follows:
“It is further stipulated that if the said Merchants’ State Bank does not secure the consent to this agreement by the owner of the southwest quarter (SW14) section eight (8), township one hundred fifty-two (152), range eighty (80), and no contract is executed, the sum of one hundred ($100.00) dollars received for this receipt shall be returned to the said Frank S. Dom, and in that event only shall it be returned.”
On the 24th day of October the bank entered into a formal crop contract for the sale of the land with Dom. The consideration was $12,000, to be paid by the purchaser by his assuming two mortgages - against the land due January 1, 1925, aggregating $6,000, and drawing 7 per cent. interest per annum, and by further paying the sum of $500 on the date of the contract ; $500 on the 1st day of January, 1918; $1,000 on the 1st day of January, 1919, and $1,000 on the 1st day of January each year thereafter until balance aside from the mortgages assumed was paid. The first $500 payment was made. The defendant, however, tad agreed to accept $500 in full for his commission, for the reason that the bank, not owning the southwest quarter, and not being able to purchase it at a price as cheap as it expected, it was agreed that defendant’s commission should be only $500. Defendant received the $500 due him as commission by receiving credit for a $100 note held by the bank against him, and by receiving a cashier’s check for $400. Prior to the time that this adjustment for the commission was made an arrangement was made between defendant and plaintiff whereby the former gave his note for $500 to the bank. The defendant claims he gave the note to the bank to make the transaction appear regular in the bank’s business. The plaintiff denies this, and claims it was a loan of that amount. It would seem the plaintiff did not desire to turn over
