[1] Broker’s Commissions — Termination of Contract of Employment—Evidence.—In this action by a real estate broker against a land owner to recover commissions for procuring a purchaser for land under a written contract of agency, the correspondence introduced in evidence failed to show a revocation or cancellation of the contract of employment.

[2] D>. —(Employment for Indefinite Period — 'Termination—■ Notice.—Where a contract of agency is for an indefinite period, the principal, in order to terminate it, must give notice of its cancellation.

[3] Id.—Rescission of Executory Contract.—While a contract of employment remains executory, the principal may rescind it, but the party claiming the right of rescission must give notice to the other party to the contract of the fact that he does withdraw, and this before the other party has performed.

[4] Id.—Continuance of Agency—Presumption.—The presumption is in favor of the continuance of the agency.

[5] Id.—Execution of Contract of Purchase—Subsequent Modification of Contract of Employment.—A contract employing an agent to sell real property is not subject to modification by the owner after the purchaser has entered into'a binding contract to purchase the property. So far as the broker is concerned, this constitutes a sale.

[6] Id.—Procuring of Purchaser—Performance of Services—Subsequent Insolvency of Purchaser.-—-The services of a real estate broker are fully performed and his commission fully earned when he has procured a purchaser ready and willing to enter into a valid contract of sale upon the terms fixed by the owner. The subsequent insolvency of the purchaser so procured by the broker after the sale of the property has been completed cannot defeat" the recovery of the broker’s commissions.

[7] Id. — Sale at Lower Price — Right to Commissions. — When a principal makes a sale to a purchaser found by the broker, having availed himself of the broker’s services, he is liable for commissions, though the sale is made at a lower price than originally proposed by him t'o the broker.

[8] Id.—Dissatisfaction With Purchaser—Duty of Land Owner.—• If the land owner is dissatisfied with the purchasers secured by the broker, he should notify the broker to that effect or decline to enter into the contract of sale, but where he accepts them as worthy of confidence, without being misled in any respect by the broker, he is bound to pay for said services.

[9] Id.—.Relation Between Parties—Trial Theory—Appeal—New Theory—Estoppel.—Where the pleadings admit and the ease is tried upon the theory that the relation between the defendant and the plaintiff was that of principal and agent, the defendant will not, on appeal, be heard t'o advance the theory that the relation between them was that of vendor and purchaser.

5. Right of broker to commission where sale is defeated by act of owner, notes, 2 Ann. Cas. 184; 20 Ann. Cas. 1024.

6. When broker’s commissions are earned, notes, "139 Am. St. Rep. 225; 20 L. R. A. (N. S.) 533.

7. Right of broker to commission and amount thereof, where less than stipulated price accepted by owner, notes, Ann. Cas. 1913E1, 784; Ann. Cas. 1914C, 13S.