Tompkins

Plaintiff brought the action, in his own behalf and as assignee of other parties, to recover five thousand dollars paid as a deposit upon a contract for the sale and purchase of certain real estate situated on Bryant Street near Fifth Street in San Francisco. The cause was tried by the court without a jury and defendant had judgment, from which and from the order denying his motion for a new trial plaintiff appeals.

The transaction shown by the findings of the court was as follows: On March 28, 1906, defendant employed George 0. Boardman, Jr., and T. D. Boardman, copartners as Board-man Brothers Co., engaged in business as real estate agents, “as his agents to procure for him a purchaser for the real property hereafter described, for an agreed compensation, and they thereupon accepted such employment”; that, on said last named date, pursuant to such employment, they represented to defendant that they had found a purchaser for defendant’s said real property, one L. A. Steiger; that, believing said representation and relying thereon, defendant did, on said March 28, 1906, enter into a contract with L. A. Steiger for the sale and purchase of the real estate mentioned in said…