If plaintiff declares on an express contract, but fails to prove it, in most jurisdictions he is not entitled to recover on a quantum meruit. Emery v. Atlanta R. E. Ex., 88 Ga. 321, 14 S. E. 556; Hammers v. Merrick, 42 Kan. 32, 21 P. 783; McDonald v. Ortman, 98 Mich, 40, 56 N. W. 1055; Thuner v. Kanter, 102 Mich, 59, 60 N. W. 299; McDonnell v. Stevenson, 104 Mo. App. 191, 77 S. W. 766; Veatch v. Norman, 109 Mo. App. 387, 84 S. W. 350; Dorrington v. Powell, 52 Neb. 440, 72 N. W. 587; Edwards v. Goldsmith, 16 Pa. St. 43; Thornton v. Stevenson (Tex. Civ. App. '95), 21 S. W. 232; Oliver v. Morawitz, 95 Wis. 1, 69 N. W. 977; Green v. Mules, 30 L. J. C. Pl. (Eng.) 343. Compare Sec. 639.

A real estate agent suing on a sale of land, relying on a special contract for a commission, can not recover upon quantum meruit. Bentley v. Edwards, 146 N. W. 347, 125 Minn. 179; 51 L. E. A. (N. S.) 254, Ann. Cas. 1915 C, 882; Bryant v. Ayres, 190 I11. App. 499; Read v. Farquharson, 207 S. W. 335, - Tex. Civ. App. - .

It has been held that on a petition to recover an alleged agreed compensation for services as broker, a recovery may be had on proof of the reasonable value of the services, and the variance may be disregarded unless it appears that defendant was misled. Susdorf v. Schmidt, 55 N. Y. 319; Close v. Brown, 230 I11. 228, 82 N. E. 629; Gregg v. Loomis, 22 Neb. 174, 34 N. W. 355.

"Where no agreement as to compensation was made between the owner of property and the broker employed by him to make a sale thereof, the broker, on procuring a purchaser, could recover on a quantum meruit for his services in making the sale at the price he did, though the principal had previously revoked the agency by selling the property without the broker's knowledge, and not merely compensation for his services up to the time of the revocation of the agency. Beams v. Wilson, 147 N. C. 304, 60 S. E. 1124. Compare Sec. 15.

Under a contract to make one the sole agent to sell lots at a commission "which shall be in full for any services he may render in surveying and laying out the land," the agent can not, having made no sales, recover on a quantum meruit for the services. Gilbert v. Judson, 85 Cal. 105.

Though a contract for a broker's services is required by the Code to be in writing, subscribed by the party to be charged, or his agent, in order to be valid, such fact does not preclude a recovery on complete performance on a quantum meruit. Blankenship v. Decker, 34 Mont. 292, 85 P. 1035. This is a departure from the general rule. Blair v. Austin, 71 Neb. 401, 98 N. W. 1040; Rodenbrock v. Gress, 74 Neb. 409, 104 N. W. 758; Barney v. Lasbury, 76 Neb. 701, 107 N. W. 989; Stout v. Humphrey, 69 N. J. L. 436, 55 A. 281; Leimbach v. Regner, 70 N. J. L. 608, 57 A. 138; Goldstein v. Scott, 78 N. Y. S. 736, 76 App. Div. 78 (N. J. Law applied).

Defendant contracted to give plaintiff the right for sixty days to sell its property at not less than a stated price, plaintiff to have any excess. Plaintiff transferred the option, and the transferees secured a man to look at the property after the expiration of the option, but who refused to buy at the price named, and on their notifying defendant, defendant sold to him at a smaller price. Held, that the plaintiff could not recover on a quantum meruit for the services rendered, having failed to fulfill the condition which alone entitled him to payment for his services. Johnson v. Va. & Car. Lumber Co., 163 F. 249, 89 C. C. A. 632; Smith v. Va. & Car. Lumber Co:, 163 F. 249, 89 C. C. A. 632. Compare Sec. 557.

Where the contract between the owner of real estate and a broker employed to sell the same is void because not in writing as required by the statute, the broker can not recover on a quantum meruit for services rendered in accordance with the contract, nor for the value of his time expended in that behalf. Nelson v. Webster, 83 Neb. 169. 119 N. W. 256; Barney v. Lasbury, 76 Neb. 701, 107 N. W. 989.

A petition alleged the employment of plaintiff to find a purchaser for land and assist in effecting a sale for an agreed compensation, but that after the purchaser had been procured, and before a sale was effected, the land owner wrongfully repudiated the contract and completed the sale to the purchaser, and that the land owner had died since the sale, and that, by reason of his death, plaintiffs had become incompetent to testify to conversations and transactions with him, and therefore unable to prove the contract, and that by reason of the premises had elected to sue on a quantum meruit for the value of their services, instead of the compensation agreed on, states a good cause of action upon a quantum meruit, and is not defeated because of the unnecessary explanatory references to the special contract, and plaintiff's incapacity to establish their claim thereunder. Templeton v. Biegert (Kan. Sup. '09), 100 P. 654.

Bankrupt agreed to pay claimant $10,000 commission for a sale of certain timber land to a specified person for $200,000; claimant made various efforts to effect a sale, but was unsuccessful, and thereafter the price was modified, and, with independent assistance, a sale was made to the purchaser named for $130,000. Held, that the broker having been regarded by his principal as instrumental in the consummation of the sale was entitled to compensation for the reasonable value of his services. In re Breen Lumber Co., 181 F. 909.

A broker pleading as one cause of action the reasonable value of his services may show, to recover the same, though there was no express promise, that there was an agency and an appropriation of his services thereunder. Phoenix Securities Co. v. Ditt-mar, 224 F. 892, 140 C. C. A. 336.

Owners' telegram to broker stating that a purchaser had wired an offer for the land asking for further information as to such purchaser and the terms under which he would buy, and advising broker that they would be inclined to sell if they could get specified price net, did not bind owners to pay broker as commission everything he could procure over such price, further action being necessary on the part of owners to make them liable even on quantum meruit. Parker v. Lindsay, 176 N. W. 1018, - S. D. - .

Where no price is agreed upon between the seller of real estate and his broker who is engaged to exchange his property for other property as basic value, and no compensation for services is agreed upon, the measure of recovery in broker's action for compensation will be the reasonable value of the services rendered as shown by the ordinary and customary charges for like services in the community. Morrison v. Jackson, 85 S. 573, - Ala. App. - .

Where the amount of broker's compensation for services in effecting an exchange of lands is not agreed on, the fair market value of the property exchanged, or offered for exchange, would be competent and relevant, but not necessarily controlling, on the question of the reasonable value of the services rendered. Id.

A broker who introduced the purchaser to the seller can not recover from the seller any compensation on a quantum meruit, unless there is proof of an agency, express or implied. Goetz v. Berman, I11 A. 235, - Del. Super. - .