Krier

This is an appeal by the defendant from a judgment against him for $2,000, in an action to recover that amount upon a written agreement to pay the same as a commission for the sale of certain land in the county of Tulare, state of California.

The trial court found that on or about December 1, 1920, the plaintiffs, acting at the special instance and request of the defendant, sold to one Lowell M. Washburn and Virginia Washburn the real ^property described in the complaint herein; that said sale was evidenced by a written contract of sale, dated December 1, 1920, and executed by the said defendant and the said buyers, Lowell M. Washburn and Virginia Washburn. That thereupon the said defendant made, executed, and delivered to plaintiffs an agreement in words and figures as follows, said agreement being written on the back of the above-mentioned contract of sale and signed by the said defendant:

There also appears a further finding that said commission has never been paid to the plaintiffs, and judgment for the same followed.

The first contention of the appellant is that the contract between himself and the Washburns was not a sale, but a contract to sell, and that plaintiffs have…