Hiss

This appeal is from a judgment in favor of the plaintiff in an action for the recovery of a commission alleged to be due under an agreement between plaintiff and the defendants, involving also an option for the sale of the defendants’ real property. The defendants on February 29, 1924, for a consideration of $200 in hand paid, executed a written agreement whereby they gave the plaintiff the exclusive right or option until March 10, 1924, to purchase their property. The agreement further provided that it should inure to the benefit of the assigns of the second party, and provided for a broker’s commission as follows: “First party agrees to pay B. H. Hiss as commission in the event of the exercise of the option five (5%) per cent of the total purchase price to be paid through and at the close of the escrow.” The plaintiff, on March 3, 1924, assigned the foregoing option to one J. J. 0 ’Regan, reserving to himself the commission to become due in the event of the exercise of the option, and according to the testimony of plaintiff this was before the tender of a letter from defendants to plaintiff, which is set out in abbreviated form as follows:

Within- the time specified in the…