Billings

Plaintiff, a licensed real estate broker, sued to recover commissions from two parties, Theodore T. Brown and Rexford Park Apartments. Rexford’s demurrer to first amended complaint was sustained without leave to amend Plaintiff appeals from order of dismissal entered under section 581 subdivision 3, Code of Civil Procedure. Brown is not a party to this appeal.

Defendant Brown, who owned two houses and a ten-unit apartment building, on July 8, 1963, entered into a written exclusive listing agreement with plaintiff wherein he agreed to pay him a broker’s commission of five percent. In August 1963, plaintiff brought Brown and Rexford, owner of a large apartment building, together; Brown and Rexford entered into an exchange agreement and, accordingly, on August 22, 1963, executed written escrow instructions whereby Brown was to accept $206,000 for his equity in the properties and Rexford was to accept Brown’s properties and credit the $206,000 as payment by Brown on the purchase price of Rexford’s apartment building, Brown to assume the outstanding encumbrances thereon. On December 7, 1963, Brown served on Rexford a notice of rescission. The exchange agreement was never consummated…