The evidence being conflicting, and the jury having accepted that most favorable to the plaintiff, none other need be considered. Under this evidence the plaintiff was clearly the procuring cause of the sale, for which the defendant agreed to pay the usual commission. The defendant could not by break*163ing his appointment with the plaintiff and taking the negotiations into his own hands avoid liability for a commission. Even if this were not true, the claimed variance between the terms of the contract as pleaded dnd the proof was riót préjúdiciail to the defendant and the plaintiff was still entitled to recriver.

The judgment of the district court is affirmed.