McCallum

The complaint in this action was for the recovery of a specified' commission on the exchange of certain real property of the defendant for an apartment house belonging to a Mr. Cooper. The answer denies the allegations of the complaint, and by way of a separate defense alleges that the broker, plaintiff herein, represented to defendant that there were only two vacant apartments in the apartment house, and that the defendant was induced thereby to execute the offer of exchange of his property for the said apartment house. Judgment was for defendant, from which plaintiff appeals.

Appellant urges that there is no evidence in the record to support the judgment. Respondent maintains that the record before us is insufficient to challenge the sufficiency of the findings on account of the failure of appellant to comply with the provisions of section 648 of the Code of Civil Procedure. Where a bill of exceptions brings up all of the evidence introduced at the trial and the specification points to a particular finding, it is sufficient. (Tannahill v. Greening, 85 Cal. App. 714 [ 259 Pac. 1017 ], and cases there cited.)

Appellant then asserts that the burden of proof is upon the respondent…