(after stating the facts as above). We do not consider the weight of the evidence. The jury’s verdict requires us to accept Allaun’s story as above outlined, and that verdict must be upheld, unless some prejudicial error can be shown.

In form this action is, as the-complaint conclusively demonstrates, the ordinary suit for the commission ordinarily claimed -by a broker who discovers and brings a purchaser to a willing seller; therefore *22plaintiff pleaded in usual phrase that he was employed to “procure the government of the United States to purchase the steamship Druid” on or before May 31, 1917.

The contention on this writ rests on an exception to refusal to dismiss the complaint on the merits at the close of the whole case; i. e., defendant below thinks itself entitled to a directed verdict. We think it true that there was no evidence at all to support the second cause of action; i. e., to show any extension of the period to end May 31st. But no specific motion to dismiss that part of the complaint was made, and we decline to consider so technical a point without technical accuracy of procedure.

The first and third causes of action are but-different ways of stating the same contention; for, if defendant below uttered words of refusal only as a trick to tide over the contractual period, there must have been a mental and actual acceptance — otherwise, there would have been nothing to conceal by the pretense. Whether there had been this mental acceptance, hidden under a pretense of refusal, in order to deprive Allaun of his commission, was the question very fairly put to the jury in a charge to which no exception was taken. The verdict has negatived any honest change of purpose or new intent to accept between May 31st and June 2d; therefore the sole inquiry for us is whether there was any evidence supporting the jury’s conclusion. This inquiry is in two parts: (1) What facts justify the finding? and (2) assuming the facts as contended for by plaintiff below, does the law justify judgment for a broker’s commission?

[1] 1. The diligence of counsel has not furnished any reported and similar state of facts. Admittedly mere refusal on the part of a vendor to perfect a sale does not prevent a broker, who has produced a ready, able, and willing vendee, from earning and receiving his commission. Watson v. Brooks (C. C.) 13 Fed. 540, and cases cited. The same case points out that conveyance is no part of a sale, so that a mere refusal to convey on the part of a vendor does not in the least affect the broker’s rights. Nor is it necessary, in order to fix the vendor with a broker’s commission, that the refusal to perfect the transaction should be either dishonest, arbitrary, or capricious. Home, etc., Co. v. Baum, 85 Conn. 383, 82 Atl. 970.

But a vendor’s consent to the offered price is, of course, necessary, and here the only possible termination of Allaun’s agency was by efflux of time without such consent. Instances are numerous of attempts to terminate a broker’s employment and then to utilize his uncompleted labors. This can be done, Dut only with good faith on the vendor’s part, and the question of bona fides is for the jury. Sibbald v. Bethlehem Iron Co., 83 N. Y. at page 390, 38 Am. Rep. 441.

Whatever difference exists between terminating a broker’s agency before success and alleging unsuccess as a reason, but doing so in bad faith, and permitting such agency to expire by lapse of time after complete success on the broker’s part by merely refusing a consent which is subsequently accorded direct to the vendors, is plainly not one of substance. We hold in this instance that from the prompt acceptance after May 31st of exactly the stanamg offer of more than *23a month previous, coupled with the falsehood uttered to Allaun regarding the sum accepted, the jury were empowered to find that the uttered refusal was a subterfuge covering an intent ultimately to accept, and such conduct is bad faith.

[2] 2. If the written contract between the parties hod evidenced the usual agreement between seller and broker, we should have no doubt; if would then have corresponded with the complaint. The burden would have lain on Allaun to show that he procured the government as a purchaser, and on failure to show such procurement he would have foaled in the first duty of plaintiff under such a pleading.

It is entirely clear from the record that Allaun never procured the United States to purchase. The government at the time, just after declaration of war with Germany, was openly and notoriously in the market for all vessels tendered and able to pass naval survey. The defendant below had already tendered its steamer, though at a very high price. We do not know why Allaun was hired. There is no evidence of what preceded the /writing of April 14th, and We cannot indulge in suspicion; but certain it is that, after learning of the official valuation of the Druid, Allaun did nothing but tell her owners that they had better take $90,000, because they would get no more. This was not earning a broker’s commission in the usual way; and if such variance between allegata and probata injuriously affected defendant below, it was entitled at least to a dismissal, not on the merits.

But the written contract proved is not a broker’s hiring, at least of the usual kind; it does not require Allaun to procure a purchaser at all; its condition is single and simple that, if the United States buys, then Allaun is to get a percentage for “commission and legal advice,” and the rewards of many agents other than brokers are commonly called commissions. Both parties have maintained silence throughout the case as to the nature of this “legal advice,” and we must accept it as a valuable consideration for a lawful contract.

Thus the proposition of plaintiff in error becomes this: That since Allaun alleged something that he never performed, i. e., procurement of the United States as a purchaser, but which on the evidence he was not in the least required to do, therefore he should have had a verdict directed against him. This is much too technical, unless injurious error is shown, and there is no injury on the construction of the contract of April 14th now contended for. This contract (we quote from plaintiff in error’s brief)—

“was not a contract to go out and. find a purchaser, hut to sell the Druid to the United States before May 31st at a purchase price in the neighborhood of ¥175,000. Tlie plaintiff was hired to get from the government a price acceptable to the defendant, and has failed to prove that he got such a price.”

This is a proper interpretation, except as it predicates Allaun’s right to recover on a price of about $175,000; no such limitation can be found in the contract words, and no such defense was ever pleaded, nor was any offer of evidence made to vary or explain the seemingly simple and plain words of bargain.

It results that under plaintiff in error’s own construction of its admitted contract, the only question for the jury was rightfully put to *24that body; and $90,000 has been declared a price “acceptable” to the owner of Druid, in the sense that it was intended to be accepted, and such intention existed before May 31st. It may be said that the argument in support of this writ hinges on the suggestion that “acceptable” means something that one accepts with satisfaction. It often does, but if the Druid Company’s officers expected to have Allaun’s right depend on their gratification or pleasure at the government’s only price for their steamer, the contract should have been drawn differently.

Since, therefore, the too careful language of the complaint worked no injury to plaintiff below, we find no reversible error in the record, and affirm the judgment, with costs.