The opinion
McCulloch, C. J.,
(dissenting). The decision of the case turns on the question whether the contract provides for payment of a commission merely on production of a purchaser, or whether a sale must be consummated before a commission is earned. There is no question involved as to bad faith or recalcitrancy on the part of the owner in refusing to accept the purchaser produced by the selling agent. Nor is it shown that the seller had no title. The proof shows only that the attorney for the purchaser pointed out a supposed defect, which the seller was able and willing to cure.
It seems to me that the plain language of the contract provides for the payment of a commission only on consummation of a sale. The initial statement in the contract is that the agent is appointed “to make sale o,f the real property” described. This means what it says— to make a sale, not merely to produce a purchaser. And this is followed by a statement as to how the commission is to be paid — by retention of the amount “from the proceeds arising from such sale.” The agent is authorized to “ accept a deposit to be applied on the purchase price ■and to execute a binding contract for sale.” The parties themselves construed the contract to mean one for consummating a sale, not merely to produce a purchaser, for the appellee made persistent efforts to obtain a consummation of the sale and did not claim a commission until the purchaser withdrew without fault on the part of appellant. ‘‘ Tell me what you have done under a deed and I will tell you what that deed means. ’’ Gauss v. Orr, 46 Ark. 129 . In the case of Robbins v. Kimball, 55 Ark. 414 , Chief Justice Cockrill said that what the parties to a contract did under a contract “is the best guide attainable for its interpretation.” The following decisions are directly in point: Lewis v. Briggs, 81 Ark. 101 ; Vaughan v. Odell, 148 Ark. 123 ; Coleman v. Edgar Lbr. Co., 153 Ark. 275 ; Phanz v. Hamburg, 83 Ohio St. 1 , 29 L. R. A. (N. S.) 533; Munroe v. Taylor, 191 Mass. 483 , 76 N. E. 106 .
My conclusion is that the appellee failed to show that he was entitled to a 'Commission — at least that the issue should have been submitted to the jury.