The plaintiff built his cause of action upon two theories:

First, a general contract of brokerage entered into with the defendant in 1928, which provided that a commission of two per cent would be paid on all sales made by the plaintiff for the defendant and approved by it.

Second, that a special agreement was entered into whereby the plaintiff procured the Ideal Mercerizing Company to purchase 20,000 pounds of yarn per week from the defendant upon certain terms and conditions, and that plaintiff was to receive two per cent commission on such sales.

The defendant resisted recovery upon two grounds:

First, that the plaintiff in his complaint had alleged a general contract of brokerage and was seeking to recover on a special contract not sufficiently pleaded.

Second, that the plaintiff was not entitled to recover in any event for that (a) the defendant had paid the plaintiff all sums due him on the regular brokerage contract of 1928, which payments were admitted by the plaintiff on the trial; (b) that the special contract proposed had never been' approved or executed by the defendant, and that the directors of defendant had expressly refused to enter into such an agreement and had so notified the Ideal Mercerizing Company.

Manifestly,’ the plaintiff cannot recover upon his first or general brokerage contract. He said: “I was to receive two per cent commission on the sales of such yarns of the Acme Spinning Company as I sold, when sales were ratified by it, and I have received two per cent commission on all orders that were sold and ratified except the contract in question.” Consequently the plaintiff goes out of court on his regular brokerage contract of 1928.

*141Tbe inquiry must, therefore, shift to the status of the alleged special contract with the Ideal Mercerizing Company. The defendant strenuously asserts that no special contract was sufficiently pleaded. Indeed, the judge of the General County Court made an entry declaring that “the court itself did not understand that the plaintiff was alleging a new or special contract with reference to said transaction until he understood counsel of plaintiff to state in the progress of the trial that he was not relying upon the original contract, but upon the new contract.” The judge of the Superior Court held the view that the special contract relied upon was not properly pleaded. However, the defendant offered evidence tending to meet and overthrow the alleged special contract, and, therefore, it would seem that the question as to whether such special contract was alleged, becomes an academic question. Both parties fought out both phases of the case with evidence. Hence the determinative question is whether there was any evidence tending to show that the special contract was consummated or resulted in a binding agreement. The pertinent decisions in this State speak plainly and definitely upon the method of establishing a contractual relation. They declare that a contract is not to be ascertained by what either one of the parties thought it was, but by what both agreed it should be. The law proceeds not upon the understanding of one of the parties, but upon the agreement of both. Prince v. McRae, 84 N. C., 674; Lumber Co. v. Lumber Co., 137 N. C., 436; Lumber Co. v. Boushall, 168 N. C., 501; Overall Co. v. Holmes, 186 N. C., 428.

Applying the accepted legal principle to the facts, it appears from the evidence: (a) that the proposed form of contract specified that “this contract shall become in force from the day of its signing.” It was never signed, (b) Plaintiff testified: “At the time I called Mr. Suggs over the telephone about this matter to which I have referred, or at one of the times, he stated tO' me that any proposition that was made by the Ideal Mercerizing Company looking to- such arrangement as was being proposed, would have to be submitted to and approved by his board of directors.” The uncontradicted evidence is that the board of directors of defendant expressly declined to approve the proposal submitted to the plaintiff and the Mercerizing Company and refused to proceed further with the negotiations. Therefore, the negotiations between the parties did not head up into a binding agreement, and the plaintiff cannot recover for the breach of a contract which never existed either in fact or in legal contemplation.

Affirmed.