22, 1901, he tendered to the bank the amount of the second payment for the lands as stipulated in the contract, which was also refused. The money to make these tenders was furnished by the plaintiff George G. Benz, to whom Murray had assigned an interest in the contract. The money so tendered has not been kept apart or brought into court, but the plaintiff Benz has been at all times able, willing, and ready to make the payments for the land in accordance with the contract. On August 28, 1901, the defendants Wallace C. and Ernest A. Nickerson, with their respective wives, made and delivered a warranty deed of the land to the defendants Abraham Slimmer and Lane J. Thomas, who paid a valuable consideration therefor, but with notice of the plaintiffs' contract, except that they paid $500 of the purchase price before they had such notice. The trial court also made findings of fact with reference to the plaintiff Murray's financial responsibility, and to the effect that he entered into the contract as a speculative venture.

The plaintiffs and the defendant Wallace C. Nickerson entered into, with reference to the trial of the action, as appears from the record herein, this stipulation:

"Stipulated in above-entitled action that if plaintiffs, or either of them, are by the final determination of said action given the lands involved therein, then plaintiffs, and each of them, shall recover no damages or costs against the defendants Nickerson, or either of them, but that in case, in said action, it shall be finally determined that plaintiffs, and each of them, are not entitled to specific performance as to one-half or more of said lands, but are entitled to recover damages against defendants Nickerson, or either of them, in place thereof, then such damages shall be assessed at one thousand dollars, without costs, and the court shall so find, and this stipulation shall be all the evidence that shall be required on the subject of damages, and that otherwise the plaintiffs, and each of them, shall take nothing as to said defendants Nickerson."

On the argument of the case in this court, counsel for the plaintiffs stated to the court, in substance, that the plaintiffs were not entitled to specific performance, and would not insist on specific performance, of any part or interest in the land, unless they were so entitled to the

whole of the land, but, in case it should be held that they were not entitled to the whole of the land, they insisted on their damages pursuant to the stipulation. It is necessary, in our view of the record, to pass upon only three general questions:

1. The first relates to the construction of the contract between the plaintiff Murray and the defendant Wallace C. Nickerson. The defendants claim that it is a mere option, giving the vendee the right to purchase the land, if he so elected, on the terms specified, at any time within thirty days next after the delivery of the abstract, and not afterwards, and further that, the vendee having failed to elect to purchase within the time limited, all his rights and equities in the land by virtue of the contract became and were absolutely extinguished, without any act on the part of the vendor. If this is the construction to be given to the contract, it follows that the conclusion is correct, and the case would be ruled by Joslyn v. Schwend, 85 Minn. 130, 88 N. W. 410. The plaintiffs claim that the contract is an executory contract for the future conveyance of real estate within the meaning of Laws 1897, p. 431 (c. 223) and that the vendee was entitled to thirty days after written notice of the vendors' intention to cancel the contract in which to tender performance.

The contract is ambiguous in its terms, but in such cases the practical construction of the parties thereto will be considered, in determining their rights, and be held to be controlling. First Nat. Bank v. Jagger, 41 Minn. 308, 43 N. W. 70; O'Dea v. City of Winona, 41 Minn. 424, 43 N. W. 97; McDonough v. Hennepin Co. C. B. & L. Assn., 62 Minn. 122, 64 N. W. 106; Walters v. Minneapolis, St. P. & S. Ste. M. Ry. Co., 76 Minn. 506, 79 N. W. 516; Lakeside Ry. Co. v. Duluth St. Ry. Co., 78 Minn. 13, 80 N. W. 831. Now, the parties to the contract gave a practical construction to it-the vendor, by serving the notice of the cancellation of the contract, as required by the statute; and the vendee, by tendering performance within the time limited in the notice. The vendor cannot avoid the effect of the notice as a practical construction of the contract on the ground that he intended that it should be given effect only in case it should be determined that the contract was not simply an option. He could not thus palter in a double sense, and, after inviting and requiring the vendee, by the notice, to perform the contract within the time limited in the notice, and

after the vendee incurred the trouble and expense of tendering performance, turn around and say to him, in effect, "I did not mean anything by the notice, for you had no rights under your contract when it was given." The contract is then to be read and construed with reference to the practical construction given to it by the parties. So reading and construing the contract, a majority of the court are of the opinion that it is an executory contract for the future conveyance of land, within the meaning of the statute. We so hold. Lamprey v. St. Paul

& Chicago Ry. Co., 89 Minn. 187, 94 N. W. 555.

2. The second question relates to the sufficiency of the tenders, and their effect. It is the claim of the defendants that, because the tenders. were not kept good and the money brought into court, they were ineffectual to save any rights which the vendee and his assignee had in the land by virtue of his contract. The trial court found that the plaintiff Benz was ready, willing, and able to make the payments on the land at all times after they were tendered.

The tenders of the amount due on the land by virtue of the contract, and the refusal of the tenders, put the vendor in default, and it was not necessary for the plaintiffs to bring the money into court. All they were required to do after the tenders were refused, and their rights in the land fixed thereby, was to be ready and willing to pay when advised that the tenders would be accepted. It is enough that they were ready and willing to perform, and tendered performance in their complaint. Minneapolis, St. P. & S. Ste. M. Ry. Co. v. Chisholm, 55 Minn. 374, 57 N. W. 63; Lamprey v. St. Paul & C. Ry. Co., 86 Minn. 509, 516, 91 N. W. 29.

The case of Dunn v. Hunt, 63 Minn. 484, 65 N. W. 948, relied upon by the defendants, is not in point. That was a case of a tender of the amount required to redeem land from a mortgage foreclosure sale, and it was held that the tender must be keep good, as it was the basis of an action to compel a redemption, brought after the time for redemption had expired; that is, the tender in that case created the right to maintain the action, but in this case the plaintiffs' rights were created by the contract of the parties, and, after the tenders were made and refused, their rights were the same as if the notice to make the payments had never been served.

We therefore hold that the tenders, as shown by the facts found by

the trial court, were sufficient, and whatever rights the vendee had in the land by virtue of the contract were preserved thereby.

3. The last question relates to the finding of the court that the defendant Wallace C. Nickerson had no power or authority to contract to sell the interest in the land of the defendant Ernest A. Nickerson and his wife. The plaintiffs claim that this finding is not supported by the evidence, for the reason that, if Wallace C. Nickerson was not originally authorized to sell such interest, the defendant Ernest A. Nickerson ratified the contract. The contract does not purport to be made by or on behalf of Ernest A. Nickerson. It appears on its face to be the individual contract of Wallace C. Nickerson. It was he that stated therein that he had sold the land to Frank Murray, and agreed to cause a warranty deed to be executed by himself and wife and Ernest A. Nickerson and wife to Murray, and deposit it in the bank. It would seem from the contract that there was nothing for Ernest A. Nickerson to ratify; but, this aside, the only evidence tending to show a ratification of the contract is the execution of the blank deed in response to the letter from Wallace C. Nickerson, as found by the trial court. This was not sufficient to require a finding that the contract was ratified, as claimed. The finding complained of is sustained by the evidence.

4. It follows that, as to the undivided half of land owned by Ernest A. Nickerson, there cannot be a decree of specific performance of the contract against any of the defendants; and further that, upon the concession and claim made by the plaintiffs on the argument, they are not entitled to a specific performance of the contract as to any part of an interest in the land. While the concession may not be legally exact, yet a vendee is not bound to accept a part of what he contracted for, with compensation for the deficiency. 20 Enc. Pl. & Pr. 491. The plaintiffs are, however, entitled to recover in this action damages from the defendant Wallace C. Nickerson for the breach of his executory contract for the sale of the land.

It is therefore ordered that the order appealed from be, and it is, affirmed as to all of the defendants, except Wallace C. Nickerson; and as to him it is reversed, with leave to the plaintiffs to apply to the district court for a finding and assessment of their damages pursuant to the stipulation of the parties.

Order modified.

F. J. STEIDL V. LOUIS K. McCLYMONDS.1

Real Estate Broker.

July 10, 1903.

Nos. 13,487-(149).

In an action by a party rendering services in securing a purchaser for a farm, held, that the evidence reasonably tended to show that plaintiff was justified by letters received from the owner in adopting and acting upon the inference that he had authority to negotiate for the sale of the property; also, that his efforts were the procuring cause of its transfer, for which he was entitled to receive compensation.

Appeals by plaintiff from an order of the district court for Traverse county, Flaherty, J., granting a motion for judgment in favor of defendant notwithstanding the verdict for $385.70, and from a judgment entered pursuant to the order. Reversed, and remanded.

Charles E. Houston, for appellant.

F. W. Murphy and W. H. Townsend, for respondent.

LOVELY, J.

This is an action to recover for services in securing a purchaser for defendant's farm in Traverse county. It was tried to the court and a jury. Plaintiff had a verdict. The court ordered judgment for defendant notwithstanding the verdict, which was entered. Plaintiff appeals from the order; also from the judgment.

It is suggested in respondent's brief that the order for judgment is not appealable. While it is not material on this review to consider this question, since the whole record comes here upon the appeal from the judgment, it may be said in passing that we have in a recent case seriously considered the somewhat doubtful question of procedure thus discussed by respondent, and have adopted the conclusion that an order upon the blended motion provided for in Laws 1895, p. 729 (c. 320) is subject to review on appeal directly therefrom. Peterson v. Minneapolis St. Ry. Co. supra, page 52.

The complaint, in brief, alleges that plaintiff rendered services for

1 Reported in 95 N. W. 906.