McCormick

This action was commenced by Henry Stieglitz, now deceased, to recover his commissions as broker for services which he had rendered in the sale of certain of defendant’s land. After the death of Mr. Stieglitz the present plaintiffs as executors of his estate were substituted as plaintiffs. The present appeal is from the judgment entered in favor of the plaintiff after the third trial of the action.

At the first trial the court granted a nonsuit upon the ground that “the plaintiff has failed to prove a sufficient case for the jury, and the evidence introduced was insufficient to support a judgment for the plaintiff.” On appeal the judgment of nonsuit was reversed. (Stieglitz v. Settle, 175 Cal. 131 [ 165 Pac. 436 ].) The judgment under review on that appeal was not a judgment on the merits. The supreme court, in reviewing that judgment, merely applied the rule that in passing upon a motion for nonsuit “every favorable inference fairly deducible and every favorable presumption fairly arising from the evidence produced must be considered as facts proved in favor of the plaintiff.” After the second trial the appeal was from a judgment against defendant, entered upon an instructed…