There is no material variance between the petition, in an action by a broker for commissions, which alleges his employment to procure a purchaser for a specified commission, the procurement of a purchaser, and the subsequent sale of the land to him, and the evidence, which shows that the owner and the purchaser procured by the broker entered into an enforceable contract for the sale and purchase of the land, and that the owner failed to perform, though the purchaser was ready and willing; the word "sale" not being limited to a transaction where the legal title is conveyed to the purchaser. Sanderson v. Wellsford (Tex. Civ. App. '09), 116 S. W. 382; Farrington v. McClelland, 146 P. 1051, 26 Cal. App. 375; Moore v. King, 178 S. W. 124, - Mo. -; Johnson v. Stewart & Hay Bldg. Co., 153 S. W. 511, 171 Mo. App. 543; Ely v. Wilde, 122 P. 1122, 62 Or. I11; Heiser v. Reynolds, 106 A. 888, - Pa. Sup. - .

Where a plaintiff stated a cause of action as a real estate broker, and the evidence showed plaintiff to have acted merely as middleman, the variance was not fatal, though the trial judge failed to order the complaint to be amended to conform to the proof. Clopton v. Meeves, 133 P. 907, 24 Idaho, 293.