Cardoza

This is an appeal by the estate of the deceased seller from a judgment decreeing that the plaintiff, Joseph J. Cardoza, a licensed real estate broker, was entitled to his commission despite the default of the buyer. The sole question presented is whether the plaintiff is entitled to one-half of the $7,500 deposited by the buyer.

The basic facts are not in dispute. The seller, Rose A. Martin, was the owner of about 60 acres of real property in southern Alameda County. On September 15, 1954, she entered into a standard form deposit receipt agreement of sale for this property at $4,200 per acre to the buyer, Morris Abouaf, providing that if the land was suitable for subdivision purposes, the buyer was to pay the deposit on or before December 30, 1954. The agreement provided that the seller was to be paid out of the fifth construction loan payment at the rate of $1,000 per home and that the purchase was to be completed in three years.

The plaintiff, Joseph J. Cardoza, was named as broker in the agreement, and the seller’s acceptance stated: ‘ ‘ The undersigned agrees to pay Broker therein named and employed by the undersigned to sell said property as commission the sum of 5% of the…