Cone

This action was instituted to recover the sum of $1,375, alleged to be due as a broker’s commission in negotiating a sale of certain real estate which belonged to the defendants. Plaintiff has appealed from a judgment of non-suit and an order denying a new trial. The case was tried by the court without a jury, and the record before us consists of the judgment-roll and a bill of exceptions, which purports to set out the evidence had in the lower court.

In substance, the undisputed facts of the case, as they appear from the evidence offered upon behalf of the plaintiff, are these: On November 15, 1907, the defendants, by an instrument in writing, authorized one Edgar C. Humphrey, plaintiff’s assignor, to offer for sale a tract of land in Menlo Park, San Mateo county, containing thirteen and ninety-eight hundredths acres, and known as “Petit Forest.” This tract of land consisted of two smaller parcels, designated in the authority sued upon as subdivision A containing six and twenty-five hundredths acres, and subdivision B containing seven and seventy-three hundredths acres. By the terms of the authorization Humphrey was empowered to offer the entire tract for sale for the sum of…