Jennings

This action was 'brought to recover $1,825 alleged to have been earned- by Herman Eppinger, Jr., the assignor o-f the plaintiff, as a commission upon a proposed exchange of certain lands-. Judgment went for defendant, and the plaintiff prosecutes- this appeal therefrom -and from an order denying his motion for a new trial.

On the second day of May, 1914, John Fletcher and the defendant entered into a written. contract, under the terms of which Fletcher was to convey to the defendant some 333 acres of land, to be chosen hy the defendant from a certain described larger tract of 436 acres in Tuba County, in exchange for a certain apartment house in Alameda County belonging to the defendant, the respective parties • agreeing to convey their properties free and clear of all encumbrances. The -contract contains various covenants and conditions, and also a provision—the one -principally involved in this case— reading as follows: “The parties- hereto- further mutually covenant and agree that they will each pay to Herman Eppinger, Jr., a commission of Eighteen hundred and Twenty-five dollars.” The contract was executed in triplicate, and a copy of it was left with Eppinger. It appears…