dissenting.

It seems clear to me that the defendant is immune from suit on just such a case as is made here by the plaintiff.'

Time was of the essence of the contract between the parties. The plaintiff failed to perform. And to permit it to recover on parol proof of what it claims to have done after its written contract has terminated, is permitting it to charge the defendant on a contract to pay a commission which is not in writing.

For this sole reason, I am unable to concur in the judgment of affirmance.

*250OPINION OF COURT.

The following is taken, verbatim, from the opinion.

Section 8621 GC. so far as pertinent here, reads as follows:

“No action shall be brought whereby to charge the defendant * * * upon an agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate * * * unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, signed by the party to be charged therewith, or some other person thereunto by him * * * lawfully authorized.”

Obviously, this statute has no application to the first cause of action. It is based entirely upon the written contract of Feb. 18, 1926. The voluntary waiver of the time of performance did not change or modify the contract. It remained in full force and effect. 80 OS. 42, 49; 104 OS. 427; 42 N. E. 13.

As to the second cause of action. It is not necessary, in disposing of the question here, for us to decide whether it does or does not come under the ban of the statute. The first cause of action was correctly submitted, and, even if the trial court erred in submitting to the jury the second cause of action, still Charles Franke can not be heard to complain, as no interrogatories were submitted to show oh what issue the general verdict was based. 24 App. 92; 23 OS. 626; 107 OS. 33.

Holding these views, it follows that the judgment of the trial court should be affirmed.