Hawkins

The plaintiff herein filed his complaint to recover a real estate commission from the defendant. The first cause of action alleged the services of plaintiff to have been rendered to defendant and that they were of the reasonable value of $2,500; the second count was one for money had and received; and the third alleged that plaintiff was employed by one H. B. Dobbins to effect a sale of certain real property in Kern County, California, which sale was consummated and Dobbins thereby became indebted to plaintiff in the sum of $2,500; that while the sale was pending Dobbins refused to go forward therewith, whereupon the defendant agreed in writing to pay plaintiff the commission if plaintiff would release Dobbins and permit the sale to be consummated; that plaintiff did release Dobbins from the claim but that defendant had since neglected to fulfill his part of the bargain. The case was tried and the court found the allegations of the third count to be true except that the amount was $1250 instead of that claimed, for which sum plaintiff was given a judgment. This is an appeal therefrom.

In rule VIII of the Rules of the Supreme Court and District Courts of Appeal it is said:

The…