Phelps

This was an action to recover $1,160.75 as broker’s commissions for negotiating a sale of real property. The trial court gave judgment for the plaintiffs, and the defendant appeals.

The evidence is not brought up, and the findings must therefore be taken to correctly set forth the facts of the case, which are as follows:—

The defendant authorized one Dunn, the assignor of the plaintiffs, to sell a tract of land then possessed and claimed by defendant, at a price not less than $23,125, and promised in writing that he “ should receive from defendant, as commissions for making such sale, the sum of five per cent upon the full amount for which said property should be sold, and that, upon deposit of ten per cent of the purchase.price by the purchasers, the defendant would furnish to him a complete and perfect abstract of title thereto.”

Dunn procured purchasers who xvere willing to take the property at $23,215, and who deposited with him ten per cent of this amount, taking a written receipt containing the following clause: “ Title to prove good or no sale, and this deposit to be returned.” The defendant *628 “ was immediately informed of said sale and its terms, and expressed…