Campbell

This is an action to recover two fifths of the amount for which certain property was sold by defendant. The court gave judgment for plaintiff for $1,850.80, and defendant appeals.

The defendant and other persons entered into a written contract with plaintiff by which plaintiff was appointed their agent to negotiate a sale of a certain reservoir dam site situated on the San Jacinto River, in San Diego County, and in which they agreed that if plaintiff effected a sale to be approved by them, they would give him two fifths of the purchase price, and that if they themselves made a sale without consulting plaintiff, he was to have the same percentage as though he had effected the sale. While this contract was still in force, and plaintiff was still their agent, they effected a sale without consulting him, and on that sale defendant re *429 ceived property of the value of $4,627, for two fifths of which the judgment was rendered.

At the trial, a great many exceptions wrere taken which are not referred to in appellant’s brief, and which do not seem to present any material error. The real point insisted on by appellant is, that the property sold was not the property mentioned in the…