Hay

Appeal from a judgment in favor of defendant and from an order of the trial court denying a motion for new trial. The action was brought to enforce payment of one thousand dollars on an alleged written promise of the defendant. The writing evidencing the alleged agreement was in the following form:

It appears that plaintiff as an agent was attempting to effect a sale of certain real property which was owned by one Weill. Plaintiff had failed to make satisfactory terms with Weill as to the commission to be paid to him for his services, and learning that the Kern Valley Bank had authority in some contingency to sell the lots of land for the price of fifteen thousand dollars, proposed to the bank through McDonald, the cashier, that the sale be made through the bank for sixteen thousand dollars and that plaintiff be protected as to a commission in the amount of one thousand dollars. As evidence of this agreement for the payment of commission, the “I. O. U.” above set out was made by McDonald. It will be noted that the Kern Valley Bank was not a party to this action. The court made findings, which are supported by the evidence, to the effect that plaintiff at all times knew that in…