Crowell

This action is brought to recover $50,000 on an oral agreement made between plaintiff and defendant concerning the sale of certain mining property and the division between them of $100,000 commissions. The plaintiff had a verdict for $15,000, and the court granted defendant’s' motion for a new trial. The appeal is by the plaintiff from the order granting the new trial.

It is contended by appellant that an agreement made under the circumstances of this case for a division of commissions is not within subdivision 6 of section 1624 of the Civil Code, and the case of Gorham v. Heiman, 90 Cal. 358 , [ 27 Pac. 289 ], is cited to sustain this position. The trial court, as we gather from its opinion, took the view that the defendant had an actual interest in the mining property which was sold and that his contract with the plaintiff was that of employment as an agent or broker to sell real estate; and this view is fully sustained by the defendant’s evidence. From this it appears without conflict that he had a written option on the property, which at the time of this sale had expired, but that thereafter and up to the time of said sale he remained in possession of the property, working…