had the experience as a sheep man which he claims to have had, the assumption of ignorance as to the condition of the ewes when they were inspected by the plaintiff on January 10th, which is repeated throughout the correspondence, is wholly unjustified. In view of this state of the record, we think the letters were admissible for the purpose for which they were received, and we note that, in the instructions given, the trial court expressly limited the evidence to the matter of credibility.

It is next argued that the court erred in allowing the witness, A. C. McCurdy, to testify from his knowledge and experience as a sheep man concerning the impracticability of saving any considerable percentage of lambs born during the winter season; that birth of lambs in cold weather has a bad effect on the wool of the ewe; and that he could tell from the appearance of the lambs whether they were scrub stock or well bred. The witness had testified to his experience as a sheep man, cover. ing a period of practically three years' employment by a man who had made sheep a business, during which time he had paid "more or less" attention to a study of the subject. It seems that the matters concerning which he testified were controverted and warmly contested during the entire trial, the plaintiff producing other witnesses who testified along the same line as A. C. McCurdy and the defendant producing a number of witnesses who testified to the contrary. We are by no means satisfied that the witness, A. C. McCurdy, was properly qualified to testify as an expert. Yet, in view of the other testimony in the case, and of the further fact that the jury must have understood fully the extent of his experience, we are satisfied that the admission of the testimony objected to does not constitute reversible error.

The witness, A. C. McCurdy, testified to the condition of the sheep upon their arrival at Backoo. This was objected to on the ground of its irrelevancy. The plaintiff had testified to an undertaking upon the part of the defendant to paper the cars, if necessary, to protect the sheen from damage in transit; and in his complaint, the plaintiff claims damages for a breach of this undertaking. In view of this testimony and this claim, it was clearly proper to show the condition of the sheep upon the arrival.

The plaintiff and other witnesses testified to the difference in value between Western ewes bred to lamb in May and similar ewes which

would lamb in February, March, and April.

There was clearly no error in allowing this testimony to be admitted. Neither was error committed in the introduction of the deposition of O. W. Roberts, wherein he testified to the weather bureau record showing the temperature on the days during which the sheep were shipped. The witness was shown to be in charge of the weather bureau in Bismarck, where such records are kept. This testimony is material and relevant as bearing on that part of the claim which is predicated upon the failure to properly ship the sheep.

Evidence offered by the defendant as to the care of the sheep after they were received at Backoo was excluded, and we think properly so, because the plaintiff made no claim for damages except those accruing while the sheep were in transit, and those based upon the difference in value between ewes lambing at different seasons of the year.

We are satisfied that there was ample evidence to go to the jury tending to prove a warranty made by the defendant with respect to the time when lambs would be born. This evidence consists not only of the defendant's letter offering the ewes for sale, but also the testimony of the plaintiff as to the conversation had at the time of inspec

tion.

An examination of the charge given shows that the court correctly instructed the jury as to what would constitute a warranty. The instruction upon this subject is: "In this connection you are instructed that any positive statement or affirmation of fact, and not of opinion, as to the quality of condition of the sheep sold made by the seller, the defendant in this case, in the course of the negotiations and naturally and fairly importing that he intended to bind himself to its truth, and which was so understood and relied upon by the buyer, the plaintiff herein, constitutes or would constitute a warranty. If, therefore, you find that there was any positive statement or affirmation of fact, and not of mere opinion, as to the breeding of the ewes in question and as to the time of lambing, and that by reason of these statements or af firmations the plaintiff was induced to buy, and he relied upon such statements or affirmations as a warranty, and such statements or affirmations were a warranty as hereinbefore explained, then if you find that the warranty was untrue and that the ewes lambed before the time stated or claimed to have been stated by the defendant and relied upon

or claimed to have been relied upon by the plaintiff, and that the ewes were not bred as stated or claimed to have been stated by the defendant and relied upon or claimed to have been relied upon by the plaintiff, then you will determine any damages accruing to the plaintiff by reason of such facts as may have been proved by a fair preponderance of the evidence in this case and award such damages to the plaintiff, not in a sum, however, exceeding that in the complaint, which is the sum of $525.

"A warranty is defined by our Code as follows: 'A warranty is an engagement by which a seller assures to a buyer the existence of some fact affecting the transaction, whether past, present, or future.' [Comp. Laws 1913, § 5973.] A mere contract of sale or agreement to sell in this case would not imply a warranty such as is set out in the complaint herein and claimed by the plaintiff.

"To constitute a warranty there must be something more than a mere opinion and something more than a mere praise of the goods sold; there must be some positive statement or affirmation of the party whom it is claimed gave the warranty as to some quality or condition which goes to make up the value, use, and desirability of the property purchased for the purpose for which it is purchased, and such statement or affirmation must have been accepted as true by the party claiming damages and he must have relied thereon, and a breach of said conditions must be proven and damages consequent upon such breach before the plaintiff can recover."

The foregoing, in our opinion, constitutes a full and complete statement of the law touching this subject as applied to the facts in the instant case, and under these circumstances it was not error for the court to refuse to give the instructions on the same subject requested by the defendant.

Finding no error in the record, the judgment is in all things affirmed.

GRACE, J. I concur in the result.

ROBINSON, J. I dissent.

RED RIVER VALLEY LAND COMPANY, a Corporation, Respondent, v. A. E. HUTCHINSON, Appellant.

(170 N. W. 317.)

Broker

action to re

- sale of lands-commission on-express contract cover under — owner participating in negotiations for sale- reducing price without knowledge of broker - without change of agency or agreement-full commissions recoverable.

1. In an action by a broker to recover commissions earned under an express contract upon a sale of real property, where it appeared that the owner of the property co-operated in the negotiations with a purchaser produced by the broker, and where, during the process of the negotiations, the gross price was scaled by the owner before the final contract of sale was executed, without any modification of the agreement relating to commissions and without a termination of the agency, it is held that the broker is entitled to recover the full commission.

2. The evidence examined and held to support the verdict.

Opinion filed November 30, 1918. Rehearing denied December 26, 1918.

Appeal from the District Court of Cass County, A. T. Cole, J.
Defendant appeals.

Judgment and order affirmed.

Sinness & Duffy, for appellant.

Upon an express contract set out in the complaint, the proof must be specific in support thereof, and proof of a different agreement, if allowed, amounts to a failure of proof, and entitles defendant to a directed verdict, upon motion therefor. Graangaard v. Betzina, 33 N. D. 267; Chaffee v. Widman, 48 Colo. 34, 139 Am. St. Rep. 220, 108 Pac. 995.

Where lands are listed with a broker for sale upon stated terms, the broker to receive a fixed sum as commissions, the execution of such listing contract to the point of supplying a purchaser ready, willing,

NOTE.-On effect upon the right of real estate broker to commissions of fact that owner sells to broker's customer at reduced price, see note in 15 L.R.A. (N.S.) 272, and 34 L.R.A. (N.S.) 1050.

41 N. D.-13.

and able to buy upon the terms stated, is the condition precedent to the right to recover the agreed compensation. Paulson v. Reeds (N. D.) 167 N. W. 371; Anderson v. Johnson, 16 N. D. 174; Fulton v. Cretian, 17 N. D. 335; Ball v. Dolan, 18 S. D. 558, 101 N. W. 719; Terry v. Bartlett, 153 Wis. 208, 140 N. W. 1133; Gilmore v. Bolio, 165 Mich. 633, 131 N. W. 105; Gelatt v. Ridge, 117 Mo. 553, 38 Am. Rep. 683; Eggland v. South (S. D.) 118 N. W. 719.

"If a broker fails to bring a customer to terms, and then abandons the negotiations or they are broken off, he is not entitled to a commission where a sale is subsequently made by the owner to the customer through independent negotiations." 9 C. J. 621; Ball v. Dolan, 21 S. D. 619, 15 L.R.A. (N.S.) 272, 114 N. W. 998; McFarland v. Boucher, 153 Iowa, 716, 134 N. W. 91.

Charles A. and Charles M. Pollock, for respondent.

The law applicable to such cases is well settled in this state. Paulson v. Reeds, 156 N. W. 1033.

BIRDZELL, J. This is an appeal from a judgment in favor of the plaintiff and from an order denying a motion for a new trial, which were entered in the district court of Cass county. The action was brought for the recovery of a commission of $5,000 alleged to have been earned in negotiating a sale of the defendant's land. The contract upon which the action is brought is alleged in the complaint as follows:

"That said defendant on or about the 20th day of May, 1916, offered in writing to this plaintiff through its said agent, Ingstad, that if it would become the agent of said defendant and make a sale of said property upon the conditions and terms agreeable to said defendant, he would pay a commission for doing the work in connection with making such sale in the sum of five thousand dollars ($5,000) to be paid when the deal was completed."

The facts necessary to an understanding of the questions presented upon this appeal are as follows: The defendant and appellant Hutchinson in 1916 was a farmer and real estate dealer, residing at Minnewauken, North Dakota, and was the owner of a tract of land of considerable size which he was desirous of selling. In order to facilitate the disposition of the tract, the defendant caused to be printed a cir