Simmons

action is for damages for the violation of a contract. In December, 1906, appellant procured from one Henderson an option on lots 5, 6, and east half of lot 7, bounded by M and N and Sixteenth and Seventeenth streets, in the city of Sacramento, for the sum of $16,000.-Shortly afterward appellant entered into an agreement with respondent whereby she was to purchase the property for $16,250 and give him one-third of the profits above $16,250 when the property could be sold for as much as $19,000. Accordingly appellant procured Henderson to deed the property to respondent for said consideration, $250 of the amount being paid to Simmons.

In the spring of 1907 the parties herein reduced their agreement to writing, as follows: “Lots 5, 6 and east half of lot 7, M and N, 16th -and 17th streets. Price paid- $16,250, selling price $19,600. Mrs. Sweeney to receive % of the profit; D. J. Simmons to receive % of the profit. Signed, D. J. Simmons; Mary Sweeney.” Appellant claims that “It is for the violation of said contract by respondent in preventing a sale of said property for $20,400 at an auction sale had April 23, 1908, and refusing to stand by the terms thereof and divide the profits,…