McDonald

Plaintiff sued as assignor of two real estate brokers to recover the commission claimed by them to be due for their services in connection with the proposed exchange of real properties. Plaintiff had judgment for $3,000, without interest, from which defendant has appealed on a typewritten transcript.

The services were performed in accordance with the terms of a written contract wherein defendant promised to pay a commission of $3,000 “upon acceptance of this agreement” by the owner of the properties which were to be conveyed to defendant. This acceptance was procured in writing and deeds of conveyance were duly executed, but, before defendant’s deed was recorded, his wife recorded a declaration of homestead upon his property and the exchange was not completed. Though the property owned by defendant and proposed to be exchanged by him was his separate property, the wife opposed his plan to sell or exchange it and notified the brokers before the commission agreement was executed that she would not execute a conveyance of the property and would do all in her power legally to prevent the exchange. Of this the defendant was fully aware at the time he executed the contract with the…