Green

Essentially this is an action for recovery of a real estate broker’s commission in an agreed amount.

Demurrer to second amended complaint was sustained without leave to amend and judgment was entered accordingly. Plaintiff appeals therefrom.

By written agreement of September 4, 1959, between defendant Morris Linn and George Elkins Company, a licensed real estate broker and assignor of plaintiff, the former gave to the broker “the exclusive right to sell, as well as the exclusive agency to sell” certain real property, for a period of 90 days from date and for a purchase price of $288,500, “or any other terms accepted by me,” broker’s commission to be five per cent “of such consideration or price as I may accept.” The agreement also says: “This sale subject to Court approval. ’ ’

Though the complaint alleges that the property belonged to Driftwood Manor, a limited partnership in which Morris Linn, Milton N. Linn and other named defendants were partners, the agency agreement was signed by Morris Linn alone and makes no reference to his acting for others in the matter. The complaint says that he was acting on behalf of himself as a general partner in Driftwood Manor and as agent…