Wood

This is an action to recover $500 alleged to have been received by defendant, as the broker and agent of plaintiffs, in the sale of certain real estate, and converted to his own use.

The cause was tried by the court, and written findings filed upon which judgment was entered in favor of the defendant.

Plaintiffs appeal from the judgment and from an order denying their motion for a new trial.

The testimony and findings show that plaintiffs were the owners of a forty-four acre tract of land lying near *293 San Jose in the county of Santa Clara, and, being desirous of selling the same, commissioned and employed the defendant, Blaney, who was doing business as a real estate broker, under the name and style of Charles D. Blaney & Co., to make such sale at the price of $16,000.

On the fifth day of February, 1891, Blaney found a purchaser for said premises at the agreed price in one Charles H. Sinclair, of San Francisco, and, as agent of plaintiffs, Blaney entered into a written contract with said Sinclair for the sale to him of said premises for the price of $16,000, payable as follows: $500 down, the receipt whereof was acknowledged in the contract; $1,000 in 20 days; $4,500 in 60…