Appeal by plaintiff from an. order of the Superior Court of the City and County of San Francisco granting a new trial. Hunt, J.

Action on contract. The complaint in this action, filed June 2, 1881, contains two counts. In the first count it is alleged: that on the first day of March, 1881, the defendant entered into an agreement with the plaintiff that in consideration that he, the plaintiff, would devote his time, labor, and skill in finding and securing a purchaser for a lot of land then belonging to the said defendant, situated at the south-east corner of Market and Fremont streets, in said City and County, and being ninety-one feet eight inches on Market street, by a uniform depth of one hundred and thirty-seven feet, six inches, at a price satisfactory to said defendant, the defendant would pay to the plaintiff therefor, the sum of three thousand five hundred dollars as a commission: that the plaintiff, thereupon, did, between said first day of March 1881, and the twenty-sixth day of May, 1881, devote his time, labor, and skill, in and about the said business, and on, to wit, the twenty-sixth day of May, A. D. 1881, did find and secure a purchaser for said lot of land, to wit, one, Claus Spreckels, at the price of hundred and seventy-five thousand dollars, and duly performed all the conditions of said agreement on his part to be performed; that said price was satisfactory to said defendant, and said defendant thereupon sold the said lot of land to said Claus Spreckels, at said price; that plaintiff thereupon demanded of said defendant, said sum of thirty-five hundred dollars, but the said defendant refused to pay the same, or any part thereof, and the whole thereof is now due and payable from said defendant to the plaintiff.

In the second count it is alleged: That on, to wit, the twenty-sixth day of May, A. D. 1881, the said defendant was, and still is, justly indebted to the said plaintiff, in the sum of three thousand five hundred dollars, for the work, labor, and services of the said plaintiff theretofore, and between the first day of March, 1881, and said twenty-sixth day of May, 1881, rendered by said plaintiff, to and for said defendant at his special instance and request, in and about the finding and securing for said defendant, a purchaser, at a price satisfactory to said defendant, of the lot of land, situated in the city and county of San Francisco, State of California, on the southeast corner of Market and Fremont streets, and being ninety-one feet eight inches front on Market street, by a uniform depth of one hundred and thirty-seven and one half feet then owned by said defendant, and in consideration thereof, the said defendant then and there agreed to pay to the plaintiff, whatever the said services were reasonably worth, whenever he should be thereunto afterwards requested; that said services were reasonably worth the said sum of three thousand five hundred dollars, but though often requested to pay the same, the said defendant has refused and neglected to pay the same or any part thereof, and the whole thereof is now due and payable from said defendant to the plaintiff.

The answer of the defendant denied the making of any contract between the plaintiff and defendant, except that on the first day of March, 1881, the defendant authorized the plaintiff to sell the lot of land for one hundred and seventy-five thousand dollars, to the firm of Low & Montague; admits the sale by defendant himself to Spreckels of the land for the sum of forty thousand dollars; the conveyance by S. to defendant of another lot of land valued at fifty-five thousand dollars, and Spreckels’ taking the defendant’s lot subject to a mortgage then existing thereon, and denies that the plaintiff was in any way instrumental in making the trade with Spreckels, or'1 that the defendant is in any way indebted to the plaintiff for any services whatever. The case was tried before a jury, who returned a verdict for the plaintiff, in the sum of two thousand dollars, and judgment was given accordingly. The defendant moved for a new trial, on, among others, the following grounds: * * * Insufficiency of the evidence to justify the verdict; that the verdict is against law; errors in law occurring at the trial and excepted to by defendant.

The Court below granted the new trial, for the reason that the Court erred in giving one of its instructions to the jury. The plaintiff appealed.