Sill

This is an action by a broker to recover commissions upon a sale of real estate. The trial was by jury, and plaintiff recovered a verdict and judgment in the sum of two thousand dollars. The defendant appeals from the judgment and brings up the evidence by means of a bill of exceptions.

The defendant was the owner of twenty-eight acres of land, most of which was orchard in bearing, situate in Santa Cruz County. On April 20, 1911, he signed and delivered to plaintiff a paper reading, so far as material here, as follows :

The complaint alleged that the parties had intended, in the clause last quoted, to provide for a compensation to the broker of the whole amount, over fifteen thousand dollars, for which a sale might be made and that the agreement to pay one-half of such excess had been inserted in the contract by mutual mistake. It was prayed that the agreement be reformed in this particular, and the judgment included such relief. No point is made on the present appeal with respect to this feature of the case, and no further discussion of it is required.

The complaint alleged, further, that on the nineteenth day of May, 1911, within thirty days after the authorization, plaintiff…