Fitzhugh

This is an action to recover five thousand dollars paid upon a contract of purchase of real property, which contract was afterward rescinded by the plaintiff because of alleged fraudulent representations made to him by the defendants, as agents for the owner of the land contracted to be purchased by him. The owner of the land consented to the rescission of the contract, and plaintiff then sued the University Realty Company to recover from it the initial payment which he had made on the land—a part of which, under the terms of the contract, was to be retained by defendant as commission in the event a sale was not consummated in accordance with the conditions of the contract. The action was commenced in the city and county of San Francisco against the defendant corporation, which is a resident of the county of Santa Clara. After the service of summons upon defendant it filed an affidavit of merits and demanded a trial in the county of Santa Clara. From the order denying a change of venue this appeal is taken. As appears from the affidavits, the plaintiff contracted to buy certain real property owned by Peter and Laura E. Faber and situated at San Mateo. The sale was negotiated by…