Alderson

The plaintiffs appeal from a judgment and from an order denying their motion for a new trial.

The complaint states a cause of action for the breach of a contract on the part of defendant, as owner of forty-three lots in the city of Los Angeles, empowering the plaintiffs as real estate brokers to sell the said lots.

The contract is dated May 17, 1904. It declares that the defendant is the owner of forty-three lots, describing them, and gives to plaintiffs the right to the exclusive sale thereof for the period of eighteen months from its date. It contained the following provision:

“All sales are to be made with delivery of certificates of title for each lot as sold or passes title under the terms of this agreement, drawn by the Title Insurance & Trust Co. of Los Angeles, and shall show clear of encumbrances, except building restriction, and such taxes that may be assessed but are not due and payable.”

It further provided that an advance commission of ten per cent on the selling price should be paid to plaintiffs, and that “a commission of eight thousand dollars, less such amounts as are paid in cash as advance commission, being the said ten per cent, and such discounts as shall…