Lesser

In this action the plaintiff and appellant, Lesser, sued to recover from defendants and respondents, who are real estate brokers, the sum of $1,000 received by such brokers as a deposit or down payment from the proposed purchasers of certain real property belonging to Lesser, under a contract negotiated by said brokers. From a judgment for defendants Lesser appeals.

It appears that the property had been listed for sale with respondents by one Berry acting under an oral authorization only from Lesser. Subsequently respondents secured a contract with Peter J. Finocchio and Louis Bavano to purchase said property for $86,500 subject to Lesser’s approval, and received from Finocchio and Bavano the deposit of $1,000 here in question. On the following day this contract was exhibited to Berry, and Berry, purporting to act as Lesser’s agent, signed a document, “M. M. Lesser, By B. S. Berry”, purporting to ratify this sale for $85,375 net to the seller. The printed form of ratification so executed contained the words “ W. B. McGerry & Co. may keep and retain as remuneration for their services hereunder - per cent upon the said amount of $-.” These words were stricken from the ratification…