McAdoo

Plaintiff, as assignee of Lilienthal-Williams Company, brokers, brought this action to recover from the defendant certain commissions claimed to be due said brokers for services rendered by them in negotiating contracts of sale of merchandise, in which the defendant was the seller.

The complaint contained two causes of action, but the plaintiff dismissed the first cause of action and recovered judgment upon the second count.

There is no dispute about the facts, many of them being covered by stipulation of the parties. It was stipulated that Lilienthal-'Wo.lliams Company was employed as broker to negotiate a sale betwen the defendant and L. H. Butcher Company. The brokers’ memorandum of the transaction was introduced in evidence. It called for “35 long tons Australian Buttermilk Lactic Casein.” The pertinent portion of the memorandum upon appeal is the statement that the sale was made: “Subject to Approval Sample Shipped.” The agreement between the buyer and seller (Butcher Company and the defendant) covering this transaction was dated April 2, 1923, and contained this statement: “Special Conditions: Subject to approval of sample now in transit. Shipment guaranteed to be equal to…