Forsyth

The complaint in this action asks for judgment against the defendant for damages in the total sum of $33,915. for the alleged breach of the terms of a certain instrument in writing, executed by the defendant, whereby the latter authorized Filcher & Cox, real estate brokers, and the assignors of the plaintiff, to negotiate and consummate the sale of certain land of the defendant, situated in San Mateo County, said amount representing the difference between the net price to the defendant at which said real estate was to be sold by the brokers and the gross price at which, it is alleged, the latter agreed in writing for the defendant to sell the property to the intending purchaser.

It is alleged that, before the institution of this action, Filcher & Cox assigned to the plaintiff the claim in suit.

The defendant was given judgment, from which and the order denying him a new trial the plaintiff appeals.

This action grows out of precisely the same transaction as that upon which the ease of French v. Phelps (Civ. No. 988), ante, p. 101 [ 128 Pac. 772 ], is founded. An opinion affirming the judgment of the trial court was this day filed in the last mentioned case, and therein a full…