Baber

This is an action brought by plaintiff and appellant against defendant and respondent to recover $1,250 real estate commission, growing out of an agency contract entered into on or about November 22, 1923.

The only issue raised by the pleadings was that raised by the allegations of the complaint that “the said plaintiff sold the said premises,” the property in question, to “Roy Porter, a purchaser ready, able and willing to purchase and pay for said property” and the denial in the answer that the said Roy Porter, to whom the property was sold “was a purchaser ready and able and willing or ready or able or willing to purchase and pay for, or purchase or pay for said property.”

The finding of the trial court was as follows: “The court further finds that the said Roy Porter was a person who was ready and willing to proceed with the said purchase, but the evidence fails to show that he was a person who was able to pay for the said property in accordance with the terms of said agreement of sale.”

The appellant contends that the judgment of the trial court is erroneous and should be reversed for the following reasons:

Upon direct examination, the purchaser testified that he was able…