Traxler

The plaintiff sued to recover broker’s commissions alleged to be due and owing to him from the defendant’s testator. The defendant asserts that there is no testimony to support the finding that the plaintiff performed the contract under which he claims relief. She also asserts that there was no agreement employing the plaintiff. And she further asserts that the purported agree ment was one of exchange and that there was found to be a material defect in the title to Ehrlich’s property which was not removed and therefore no commission was earned. These several contentions we think may best be treated together.

On January 16, 1928, defendant’s testator executed an instrument agreeing to exchange three several parcels of land together with $15,000 in cash- for ■ a parcel on the west line of Mission Street which was entirely covered by buildings. The writing included, among others, these passages:

The paper was not signed by this plaintiff. After it had been signed by Ehrlick a survey was made and it transpired that the improvements on Ehrlick’s property overlapped the sidewalk on the east line of the property and that they overlapped to the extent of three-quarters of an inch the…