Moore

This action was brought to recover for services claimed to have been rendered to defendant by plaintiff’s assignor, one Edward R. Hayden, as a real estate broker. The following facts appear from the evidence: The defendant owned an apartment house at 510 Stockton Street, San Francisco, encumbered by a mortgage for $40,000. Early in 1925 he stated to plaintiff’s assignor that he was desirous of selling this property. Although the agent had several prospects, he did not succeed in selling the property, and in October there was another conversation in which the defendant said, “Hayden, I will tell you frankly I am very anxious to sell this property.” He priced the property at $90,000 and the agent replied that he would specialize on selling it, and then suggested the possibility of making a trade for what was known as the Lee Garage on Eddy Street, in the same city; a property known to the defendant. This Lee Garage was subject to a first mortgage for $45,000 and a second deed, of trust for $39,800.

After considerable negotiation the defendant finally stated what he would do, a memorandum of which was written by the broker, signed by the defendant with his initials and delivered by…