Martin

Plaintiff, a real estate broker, obtained an exclusive three-day listing upon defendants’ property to sell the same for not less than $500,000, which provided for payment of a commission in an amount the actual sale price exceeded $500,000. Plaintiff brought this action on the listing agreement contending he had obtained a purchaser ready, willing and able to pay $533,000 cash; sought recovery of $33,000 as a broker’s commission; received an adverse verdict after jury trial; and moved for judgment notwithstanding the verdict, and alternatively for a new trial, which was granted. Defendants appeal from the judgment entered accordingly, and from the order granting the new trial which was to be effective in the event the judgment was reversed on appeal. (Code. Civ. Proc., § 629.)

The determinative issues on appeal are (1) whether the evidence establishes as a matter of law that plaintiff obtained a purchaser ready, willing and able to purchase defendants’ property upon the terms set forth in the listing agreement; and (2) in the event the evidence does not sustain plaintiff’s cause of action as a matter of law, whether the state of the record is such as to authorize the trial court…