Curran

Action by plaintiff, a real estate broker, to recover a commission for services rendered to defendant in effecting an exchange of land.

Plaintiff’s authority to act in the matter consisted of a memorandum in writing subscribed by defendant and delivered to plaintiff, a copy of which, as set forth in the complaint, is as follows:

The court found that plaintiff was a real estate broker, and that in December, 1908, defendant employed him as such agent and broker to find an offer for sale or exchange of the property in question, which said employment was evidenced by the memorandum in writing as alleged and set forth in the complaint; that plaintiff, acting on the authority of such memorandum, went to some expense in showing said property to one John Haasis, whom he introduced to defendant about January 16, 1909, and induced him to make an offer of property which he (Haasis) valued at $12,000 in exchange for defendant’s property; that defendant declined to accept this offer, but that thereafter, in February following, Haasis made to defendant an offer of other real estate in exchange for said lot 645, Ontario Colony, which offer defendant accepted and exchanged said lot for the…

I dissent from the order denying a rehearing. I think that the finding which the appellant challenges upon the ground that it is unsupported by the evidence, and which the district court of appeal treats as immaterial, was material and essential to the right of recovery.