Maze

— Plaintiff’s appeal from the judgment and an order refusing a new trial. Action to recover broker’s commission.

The broker was employed under the following contract: —

The broker found a purchaser for the entire tract of 10.840 acres, and entered into a written contract with the proposed purchaser in the name of his principal. The terms of the sale differed materially from those authorized in the broker’s contract. The tract of 10,840 acres is described in the purchaser’s contract as the east half of township 11 south, range 19 east, Mount Diablo meridian, excepting section 36, and 40 acres in section 12, which is not owned or possessed by Hamilton. It is averred in the complaint that this is the entire tract of 10.840 acres alluded to in the contract.

The complaint contains three counts. In the first, it is averred that the sale made was ratified by Hamilton. In the second, that after the purchaser was found and sale made, Hamilton withdrew the land from sale and forbid the completion of the contract of sale. In the third, that Hamilton ratified the sale made and accepted it as under the contract, and then compromised the matter with the purchaser, paying him a consideration…