Oullahan

This is an action by real estate brokers to recover commissions for negotiating a sale of a tract of land situated near the city of Stockton. The owners thereof gave Gaman & Lyon, real estate brokers of San Francisco, the following writing:

The brokers had in view one C. D. Barrows as prospective purchaser, and were expecting him to appear upon the scene at any moment for the purpose of viewing the land. After the owners had placed the property *652 in the hands of Gaman & Lyon under the aforesaid agreement, they ascertained that certain parties residing in San Jose were desirous of purchasing, whereupon they stated to the brokers their fears that the prospective buyer, Barrows, would fail to purchase, and that prior to the expiration of the life of the contract the San Jose parties would undergo a change of mind, and thus no sale be consummated to any one, and they thereupon requested said brokers to release them from the contract. In answer to such request Gaman & Lyon sent them the following letter:

Baldwin gave his power of attorney to Langford and McDougald to act for him in the premises, and was not in the city on Thursday, the 22d. Langford was not in Stockton upon that…

I concur in the views of Mr. Justice Harrison.

Rehearing denied.

A broker’s contract for the sale of real estate is to be construed under the same principles as is any other contract. It is a contract of employment wherein the right to compensation is established when the broker has performed the contract according to the terms of his employment; and until he has rendered the services for which he was employed he has no right to compensation. “The general rule of law as to commissions undoubtedly is that the whole service or duty must be performed before the right to any commissions attaches, either ordinary or extraordinary; for an agent must complete the thing required of him before he is entitled to charge for it.” (Story on Agency, sec. 329.) The rendering of such services being in the nature of a condition precedent to his right of recovery, the burden of proving the performance of the condition is upon him, and its performance must be .satisfactorily established in the mode and to the extent stipulated by the contract of employment. (Wharton on Contracts, sec. 601; Hinds v. Henry, 36 N. J. L. 328.) For the purpose of showing, therefore, whether he has performed his contract, it is first necessary to ascertain the terms of the contract.…