relating to commissions, the broker is entitled to recover the stipulated commission.
Opinion filed May 18, 1921. Rehearing denied June 28, 1921.
Appeal from District. Court, Richland County; Graham, J.
Affirmed.
W. S. Lauder, for appellant.
Under such an agreement the plaintiff’s recovery must be upon a quantum meruit and not for a stated amount, and that is undoubtedly the law. Louva v. Worden, Paulson v. Reeds, 33 N. D. 141-146; Harris v. Van Vranken, 32 N. D. 238; Paulson v. Reeds, 39 N. D. 329.
Where a party sues on an express contract he cannot recover on an implied contract nor on a quantum meruit. Paulson v. Reeds, 33 N. D. 141; 39 N. D. 329; Cyc. Vol. 9, 739 et seq.; Morrow v. Board of Education, 64 N. W. 1126, (S. D.); Wernli v. Collins, 54 N. W. 365; Ball v. Dolan, 114 N. W. 998; Ency. Pl. & Pr. Vol. 2, 990; Beers v. Schallern, 161 N. W. 557, (N. D.)
Wolfe & Schneller, for respondent.
Birdzell, J. This is an appeal from a judgment in favor of the plaintiff for $1,200, interest, and costs in an action to recover a commission for the sale of real estate. The action has been pending for 10½ years, and this is the fourth appeal. The facts have been amply stated upon the previous appeals, and need not be restated in full here. See Paulson v. Reeds, 24 N. D. 211, 139 N. W. 1135, 33 N. D. 141, 156 N. W. 1031, and 39 N. D. 320, 167 N. W. 371. After the last remand to the district court, a stipulation was entered into whereby it was agreed that the case should be submitted to the court, Hon. F. J. Graham, Judge, presiding, without a jury, and that it be submitted upon the testimony which had been transcribed in separate statements of the case as settled and allowed on appeals to this court. It was specifically stipulated that the court, in the decision of the questions involved, might consider the testimony with the same force and effect as though the wit-
