Born

This is an action to recover the sum of two "thousand dollars paid as a deposit on account of the purchase of real property.

The appeal is by plaintiff from the judgment and from an order denying his motion for a new trial.

The circumstances attending the negotiations for the sale of the property and the payment of the deposit are as follows:

Baldwin & Howell, real estate dealers in San Francisco, at no time mentioned in this ease had any agreement in writing to sell the property described in the complaint. David Hirschler, an employee of Baldwin & Howell, called on the defendants for the purpose of getting such an authorization, but his request was refused. He was told, however, that the first real estate agent who would come to the defendants with a Iona fide offer at a named price would get the property for sale. This was on the twelfth day of March, 1906. Thereafter, on the same day, Edward M. Long, another employee of Baldwin & Howell, called upon Geo. F. Lyons, the agent of the plaintiff, with a view to effecting a sale of the defendants’ property to the plaintiff, with the result that a form of contract was then drawn up, under the terms of which the plaintiff was to…