Plaintiffs, husband and wife, brought an action to recover $3,000, alleged to be due for money paid to defendant Cokely, a realtor, as agent for defendant Wilson, on account of the purchase of real property, Wilson, the owner of the property, having refused to execute the deed. Wilson offered the sum of $600 to plaintiffs, and on their refusal to accept the tender he placed the money in bank and gave proper notice of the deposit. It was shown at the trial that the plaintiffs paid Cokely $3,000 toward the purchase price of the property without the knowledge of Wilson. Cokely paid Wilson $500 and misappropriated the balance. The trial court found that the plaintiffs employed Cokely to procure for them a residence property, and that in the dealings between plaintiffs and Cokely the latter was acting for and on behalf of plaintiffs as their agent, and not as the agent of defendant Wilson. As a conclusion of law, it, in effect, held that Cokely had no authority to bind the owner, or right to accept money paid by plaintiffs to conclude the sale. It, therefore, entered judgment for plaintiffs for the sum of $500, the amount actually received by Wilson. Because of the tender and deposit, defendant was awarded his costs. Plaintiffs appealed.

The cause was transferred by this court to the district court of appeal, first appellate district, division one, for hearing and determination, where the judgment of the lower court was reversed. In the course of the opinion the court cited the decision of the district court of appeal of the second appellate district, division one, in Gold v. Phelan, 58 Cal. App. 471 [ 208 Pac. 1001 ], as laying down the rule defining the authority of a broker' in transactions involving the sale of real estate. In the petition to have the cause heard in the supreme court, after judgment in the district court of appeal, the respondent most earnestly contended that the decision in the case was contrary to the rule approved in Gold v. Phelan, supra, and, if allowed to stand, would create great confusion and uncertainty in all real estate transactions where the parties dealt through real estate brokers. The petition was granted, and the cause was brought here in order that this court might finally pass upon the questions presented by the appeal.

After a reargument of the case and a careful consideration of all the points involved, we are of the opinion that the facts in the present case differentiate it from those considered in Gold v. Phelan, supra, and that the opinion of the district court of appeal does no violence to the law of the earlier decision. Neither are we apprehensive that the dire results forecast by the respondent will follow if the present opinion is allowed to stand. We therefore adopt as our opinion the following portion of the opinion of the district court of appeal, written by Mr. Presiding Justice Tyler, and concurred in by Associate Justices St. Sure and Knight:

For the reasons given, the judgment is reversed.

Richards, J., Lennon, J., Houser, J., pro tem., Seawell, J., Shenk, J., and Lawlor, Acting C. J., concurred.