Welton

The plaintiff, as assignee, sued for commissions alleged to have been earned by his assignor, in negotiating the sale of a hotel. The defendant filed an answer in which he denied the allegations of the complaint and he also filed a cross-complaint. The cross-complaint was answered and on the issues so made a trial was had in the lower court before the court sitting without a jury. The trial court made findings of fact in favor of the defendant and from a judgment entered thereon the plaintiff has appealed under section 953a of the Code of Civil Procedure.

The appeal involves the question as to whether the sale fell through by reason of the act of the vendor or by reason of the act of the vendee. The property involved consisted of the business and the furnishings of the Glen Garin Inn, located at 815 Bush Street. Prior to December 28, 1923, the defendant was the lessee of the building and the owner of the business and furnishings, and the property was mortgaged to Alta M. Bates by and under the terms of a mortgage executed on the twenty-third day of May, 1923, to secure the payment of a promissory note in the sum of $2,500. On the twenty-eighth day of December, 1923, the vendor by…