This is an action for a real estate commission. James Westwater was the owner of a 99 year lease upon 30 acres of land. James Kegg claimed that under a contract with West-water he was authorized to find a purchaser thereof upon an agreed commission of 3 per cent. Kegg was given until August 21, 1922 to find such a purchaser. On that date Kegg secured a racing association to a proposition for $27,000 on payments. The proposition was rejected by Westwater who wanted $30,000.
It was alleged in the Franklin common pleas where the case for tried that Kegg and Westwater had conferences concerning the land and a purchaser thereof. On September 29, 1922 the deal was closed by Westwater with one, Shepard, the manager, of the racing association for $30,000. Kegg was refused his commission and on trial a motion for a directed verdict was granted in. favor of Westwater. Error was prosecuted and the court of appeals held:
*296Attorneys—O. R. Crawfis, and H. H. Met-calf, for Kegg; James G. Westwater for West-water; all of Columbus.
1. It was entirely competent for Kegg and Westwater to waive or extend by implication some of the terms of the proposition by subsequent acts and conduct, and we are of the opinion that there was evidence offered by Kegg tending to prove such waiver or continuation.
2. The fact that Shepard was the manager •of the racing association, leads to the inference that the identity between the association and Shepard were one and the same.
3. It was a fair question to have submitted to the jury of the fact whether the bringing together of Shepard and Westwater by Kegg did not lead to the final sale. Judgment reversed and cause remanded.