[1] Contract—Agency for Sale of Lands—Development and Distribution of Water for Irrigation—Duty of Owner—Supply in Advance of Sales.—In this action to recover damages for the breach of an agency contract to sell lands, the contract contemplated that the owner should bore wells and construct ditches for the purpose of irrigation as rapidly as was reasonably possible and before the lands were sold.

[2] Id.—Action for Damages—Construction of Pleading.—In this action, the so-called separate causes of action, other than that calling for damages for breach of the entire contract, were in the nature of special damages for particular consequences, substantially growing out of the same breach of contract.

[3] Id.—Compensation Of Agent—Interest on Deferred Payments —Bight of Participation.—Under the contract involved in this action, the language used is sufficient to imply that the" agent should share in the interest received on deferred payments on account of lands sold as well as in the principal thereof.

M Id.—Supplying of Lands With Water—Extent of Duty.—Under the terms of the contract in question, the owner was required to construct ditches capable of carrying to the several tracts the amount of water necessary for irrigation, and such obligation was to continue until transferred to mutual water companies to be incorporated, which companies were never organized.

[5] Id.—Default of Owner—Sufficiency of Evidence.—The evidence supports the finding in this action that the owner failed to furnish water for irrigation of the lands in accordance with the contract.

[6] Id.—Bight of Withdrawal of Lands from Sale.—Under the contract involved, the owner was not given the right to withdraw any land from the terms of the contract upon its determination that water could not be conducted from the wells to the land, or any part thereof, in adequate quantities and at reasonable cost. (Questioned by supreme court on denial of hearing.)

[7] Broker’s Commissions—When Earned.—Unless there is a provision in the contract to the contrary, a real estate agent employed to negotiate a sale of land earns his commission and it is payable when he produces within the time allowed a purchaser who is ready, willing, and able to take the property on the terms prescribed or with whom he enters into a contract upon such or other terms satisfactory to him, and the agent cannot be deprived of the agreed compensation because deferred payments are not made by the purchaser, or because other terms of the contract are not carried out.

[8] Id.—Conditions of Payment.—The parties to an agency contract may make the payment of commission dependent upon any lawful condition, as upon a completed sale or out of installments, as paid by the buyer.

[9] Id.—Default of Vendor—Commissions out of Deferred Payments—Right of Broker.—When the vendor does not comply with the terms of his contract and as a result thereof the purchaser fails to complete his payments, the agent is nevertheless entitled to his commissions which were to be paid out of the deferred purchase money.

[10] Id.—Effect of Breach—Prevention of Sale of Entire Tract —Sufficiency of Evidence.—In this action, the evidence is sufficient to support the finding that plaintiff would have sold all of the land but for defendant’s breach of the agreement.

[H] Id.—Damages—Prospective Profits.—A broker who agreed to conduct a campaign for and the business of selling a tract of land in parcels to the end that the same should be sold in the shortest possible time and agreed not to engage in the sale of other land subdivisions during the life of the agreement is entitled to recover, upon breach of the agreement by the owner, prospective profits.

[12] Id.—Evidence—Sales of Other Lands in Vicinity.—In an action by a broker to recover damages for breach of a contract authorizing him to sell a tract of land in subdivisions, evidence of sales made of lands in other places in the vicinity at the period of time in question should have been rejected, where offered to show that plaintiff would have sold the entire tract but for the breach of the contract by the owner.

[13] Id.—Effect of Breach of Contract—Opinion Evidence.—Opinion evidence as to the value of the exclusive agency contract, and the profits which might have been made, or the amount of business which might have been done under the agency if it had not been wrongfully terminated, is not admissible, since such opinion would be purely speculative and conjectural.

[14] Id.—Quantities of Land Sold—Competent Evidence.—In such action, evidence showing the quantities of land sold by plaintiff and the rate at which sales were progressing when further performance of the contract was prevented by defendant was properly received, since it -tended to prove that further sales could have been made but for the acts of the defendant.

7. When broker is entitled to commissions, notes, 28 Am. St. Rep. 546; 132 Am. St. Rep. 225; Ann. Cas. 1914D, 395.

9. Right of broker to compensation when sale is defeated by owner, notes, 2 Ann. Cas. 184; 20 Ann. Cas. 1024.

11. Recovery by broker of prospective profits upon breach of contract to sell on commission, notes, 6 Ann. Cas. 976; 10 Ann. Cas. 654; Ann. Cas. 1917B, 1194.