The opinion of the court was delivered by

We think that this case is not within the statute» The plaintiff below did not sue to recover a commission for the sale or exchange of any real estate, nor was the defendant’s agreement, on which the suit rested, one to pay him for such a service. What the plaintiff had done under the defendant’s employment was to advertise the property for sale at auction and to secure the services of an auctioneer. Although,, according to the original bargain, his right to compensation for this service might depend upon the sale of the property by the auctioneer, yet there was implied in the bargain an understanding that the defendant would not prevent such a sale; and when she did prevent it by her private sale of the property, the plaintiff became entitled to damages for the breach of this implied obligation. It was then perfectly legitimate for the parties to liquidate those damages, and, according to the statement of facts, they did so by the defendant’s agreement to pay the plaintiff two per cent, of the price realized at the private sale. An agreement of this nature differs essentially from those contemplated by the statute upon which brokers or real estate agents base claims to commissions for the sale or exchange of lands.

The judgment should be affirmed, with costs.