Naylor

The petition for a rehearing is denied.

In denying the petition for a rehearing we deem it proper to again call attention to the fact that the only employment of the broker evidenced by the writing relied on was to procure an acceptance of the specific offer made by defendant, which the broker never sueeeded in doing, either within the ten days allowed for such acceptance or at all. The broker was not employed generally to effect a sale or exchange of defendant’s property, but only to procure an acceptance by Mrs *549 Thompson of the offer to exchange and sell contained in the writing signed by defendant. In this particular the case is quite like the case of Holland v. Flash, post, p. 686, [ 130 Pac. 32 ], decided December 19, 1912 (which is since the opinion in this case was filed), by the court of appeal of the second district, where it was in effect held, that under such a contract the broker could only recover on showing a compliance with the particular employment evidenced by the writing.

This is an appeal from a judgment in favor of defendant, and the order denying plaintiff’s motion for a new trial.

The action was brought by plaintiff as the assignee of Geo. H. Murdock & Son to recover the sum of five hundred dollars as broker’s commission under a written contract.

Murdock & Son had the property of defendant, a ranch in Tehama County, listed for sale or exchange. Learning that one Mrs. Thompson owned a piece of real property in Oakland which she was desirous of exchanging for ranch property, they informed defendant thereof and sent her to see Mrs. Thompson. All the business was transacted on behalf of the brokers by one Stanley. After defendant had examined the property she signed and delivered to Stanley, for the brokers, a writing, dated September 27, 1909, in which she offered to sell and exchange her said ranch for the said property of Mrs. Thompson and the sum of $5,750, to be paid in cash or approved securities bearing eight per cent per annum. The writing contains the following: “and I agree to pay Geo. H. Murdock & Son a commission of $500 for *546 their services as agents in effecting the above sale and exchange. Mrs. Thompson to be allowed ten days…

This is an appeal from a judgment in favor of defendant, and the order denying plaintiff's motion for a new trial. The action was brought by plaintiff as the assignee of Geo. H. Murdock Son to recover the sum of five hundred dollars as broker's commission under a written contract. Murdock Son had the property of defendant, a ranch in Tehama County, listed for sale or exchange. Learning that one Mrs. Thompson owned a piece of real property in Oakland which she was desirous of exchanging for ranch property, they informed defendant thereof and sent her to see Mrs. Thompson. All the business was transacted on behalf of the brokers by one Stanley. After defendant had examined the property she signed and delivered to Stanley, for the brokers, a writing, dated September 27, 1909, in which she offered to sell and exchange her said ranch for the said property of Mrs. Thompson and the sum of $5,750, to be paid in cash or approved securities bearing eight per cent per annum. The writing contains the following: "and I agree to pay Geo. H. Murdock Son a commission of $500 for *Page 546 their services as agents in effecting the above sale and exchange. Mrs. Thompson to be allowed ten days from…