department. The contract was signed by McLeod on behalf of the defendants and is in the following terms:

"Mr. Geo. Sellers, "Oakley, Cal.

"Dear Sir:

"San Francisco, 22nd Sept., 1909.

"Replying to your letter of 21st inst., the price we are asking for the Solway ranch is $125,000, including stock and implements and interest in the pumping plant. We would be willing to accept one-half cash and carry the balance at 6% net for a reasonable time. We will pay 5% commission on the above price to the party effecting a sale.

"You are no doubt aware that part of the ranch is rented to Japanese for potatoes, etc., and possession of same cannot be given until expiry of the lease this fall.

"Yours truly,

"Balfour, GUTHRIE & Co.

"Per (Signed) R. F. MCLEOD.

"P. S.-There is about 1700 acres altogether.'

(It may be said parenthetically that at the time of the sale the price of the property had been increased.)

It is an established fact in the case, and not disputed, that the authority from the defendants to McLeod to enter into this contract was not conferred in writing. The action having been dismissed as to the defendant Solway Land Company, the remaining defendants at the conclusion of the trial moved that the jury be directed to return a verdict in their favor, upon the ground of the lack of written authority to McLeod, section 2309 of the Civil Code requiring that an authorization to an agent to enter into a contract required to be in writing must itself be evidenced by a written instrument. This motion was also granted, and the jury thereupon returned its verdict in favor of the defendants. From the judgment entered thereon the plaintiff takes this appeal. In support of his appeal plaintiff urges that the court erred in directing the jury to find in defendants' favor for two principal reasons, viz., first, that the plaintiff's contract being one between broker and broker, is not governed by section 1624, subdivision 6, of the Civil Code, and that therefore McLeod's authority to enter into it was not required to be in writing; and, second, even if the contract sued upon

be one that is governed by said section, the conduct of the defendants in reference thereto estops them from availing themselves of the bar of the statute.

The authorities in this state holding that an oral contract between brokers whereby one employs or secures the cooperation of another to sell real estate is valid and enforceable, may be roughly divided into three classes. The first class comprises cases where the brokers' agreement was purely and simply one of partnership, such as Coward v. Clanton, 79 Cal. 23, [21 Pac. 359], Gorham v. Heiman, 90 Cal. 346, [27 Pac. 289], Bates v. Babcock, 95 Cal. 479, [29 Am. St. Rep. 133, 16 L. R. A. 745, 30 Pac. 605], and Baker v. Thompson, 14 Cal. App. 175, [111 Pac. 373]; the second comprises cases where the agreement of the brokers was to divide between them, either equally or in a stated proportion, a commission or compensation to be received by one of them from the owner of the land to be sold, such as Casey v. Richards, 10 Cal. App. 57, [101 Pac. 36], Hageman v. O'Brien, 24 Cal. App. 270, [141 Pac. 33], Reynolds v. Jackson, 25 Cal. App. 490, [144 Pac. 305], Hellings v. Wright, 29 Cal. App. 649, [156 Pac. 365], Jenkins v. Locke-Paddon Co., 30 Cal. App. 52, [157 Pac. 537]; and the third class consists of cases, two in number, in which one broker, having a contract from the owner to sell real property, has agreed with a second broker to pay him for his services either in procuring a buyer for the property or assisting in that end-those cases being Saunders v. Yoakum, 12 Cal. App. 543, [107 Pac. 1007], and Johnston v. Porter, 21 Cal. App. 97, [131 Pac. 69].

In the case at bar the contract, as we have seen, is one to pay a specific amount, viz., five per cent on the purchase price, for the procuring of a purchaser, and would fall within the last-named classification and be governed by the authority of those cases, unless it contains elements differentiating it from them and making inapplicable the rule therein followed.

The leading case in this state upon the question is Gorham v. Heiman, 90 Cal. 358, [27 Pac. 289], and which has been cited in practically every decision upon the subject which has since been rendered. The agreement there was between brokers to co-operate in the selling of a mine and to divide commissions, and the court referring thereto used this lan

guage: "Counsel seem to rely on section 1624 of the Civil Code, subdivision 6. But clearly that provision was only designed to protect owners of real estate against unfounded claims of brokers. It does not extend to agreements between brokers to co-operate in making sales for a share of the commissions." It will be seen upon examination that all the cases in the first and second classification made above dealt with agreements between brokers to co-operate in the common object of procuring a purchaser for real property, and come squarely within the authority of Gorham v. Heiman.

With regard to the remaining two cases, it appears that in Saunders v. Yoakum, supra, "defendant agreed with plaintiff that if he would procure a purchaser for any or all of the property, he would pay to the plaintiff a commission in the event of a sale." Plaintiff performed his agreement,

and the defendant received a commission of one thousand two hundred dollars, and refused to pay plaintiff for his services. The latter thereupon brought suit, and recovered four hundred dollars as the value thereof. Upon appeal the contention of the defendant that the contract was void because not in writing was overruled upon the authority of the leading case above cited, the court construing the agreement to be one between brokers to co-operate in making a sale for a share of the commission, and referring to the services of the plaintiff as being rendered "in assisting the defendant to earn his commission."

In the second case-Johnston v. Porter et al.-it appears that Johnston, the plaintiff, introduced the purchaser of the property to the defendant Morey, who was acting as the agent of the owner, and also assisted in conducting the negotiations which resulted in a sale. Morey orally agreed. to compensate Johnston for his services. Upon the conclusion of the sale Morey received a commission of $2,250, out of which he offered to pay Johnston $250. Johnston being dissatisfied with the amount tendered by Morey, brought suit upon the oral agreement for the reasonable value of his services. The court allowed a recovery of one thousand five hundred dollars out of $2,250 received by Morey. Upon appeal the judgment was sustained, this court construing the agreement between Morey and Johnston as being one between two brokers to co-operate in the sale of real estate, using this language: "Subdivision 6 of section 1624 of the

Civil Code, which declares an agreement authorizing or employing an agent or broker to sell real estate for a compensation or commission to be invalid unless reduced to writing, was designed only for the protection of real estate owners against the unfounded claims of brokers; and it was never intended to be applied to contracts between brokers co-operating in the sale of real property and agreeing to share commissions earned as the result of such sale," citing Gorham v. Heiman, supra.

If it be the law in this state, as stated in Gorham v. Heiman, that the section of the code under consideration "was only designed to protect owners of real estate against unfounded claims of brokers," then the authorization to the employee of the defendants McLeod did not need to be in writing. But, as was said in the later case of Aldis v. Schleicher, 9 Cal. App. 372, [99 Pac. 526], that section is "equally applicable to any contract whereby one, whether owner or not, employs another to effect a sale of real estate, and agrees unconditionally to pay a stipulated sum for the performance of such services."

It will be observed that in Gorham v. Heiman, in which the rule was first laid down that the provisions of subdivision 6 of section 1624 of the Civil Code apply only to contracts between the owners of real estate and brokers, the contract there being considered was literally an agreement between brokers, dealing with each other as such, to unite their efforts in the disposal of a mine, and to divide the compensation to be earned in the event of success, and that there was no employment by one of the other. Evidently such a contract was one of partnership, and did not come within the terms of the section, whether the legislative intent in enacting it was merely to protect owners of real estate or its scope was much broader. As already pointed out, the cases following Gorham v. Heiman, with the exception of the two noted, all dealt with agreements between brokers to divide commissions to be received as the result of their joint efforts; and even in those two, while the agreement as to the compensation of the complaining broker was more in the nature of a direct promise by the other to compensate him for services already or thereafter to be rendered, it is still apparent that they dealt with each other as agents, that they were both interested in the result of their

common efforts, and that the compensation agreed to be paid, or allowed by the court, was a part only of the compensation of the employing broker, thus preserving in some degree the idea of co-operation between broker and broker for a division of the fee, and enabling the court in its desire to prevent the defeat of an equitable claim to construe the agreement as one for the division between brokers of a compensation jointly earned.

In the case at bar there is no such partnership between the brokers, nor any agreement to divide compensation, and no effort on the part of the plaintiff to obtain a division of the commission received by the defendants. On the contrary, the amount sued for is almost double the sum which the employing brokers received as their compensation for the care of the property and its sale. There was, moreover, no knowledge on the part of the broker employed that his employers were in fact agents, and the contract is one of employment for a specific compensation. In the complaint the employing brokers are charged as the owners of the property; and it was only during the progress of the trial. that the plaintiff discovered that they were not such owners, and when such discovery was made there was no amendment of the complaint requested. If we hold this case not to come within the provisions of section 1624 of the Civil Code, we must ignore the careful insistence to be discerned in the cases upon the existence of a partnership, or of an agreement to divide commissions, or of the existence of a fund received by one broker in which the second broker may be allotted a share and lay down the rule that all these things are immaterial, and that a direct contract of employment to sell real estate for a specific compensation. is invalid if made by the owner of the property with a broker, but is valid if made between two brokers-contrary to the rule declared in Aldis v. Schleicher, 9 Cal. App. 372, [99 Pac. 526], and which appears to us to be plainly applicable to the case at bar.

We are, therefore, constrained to hold that the plaintiff neither by the allegations of his complaint nor his proof upon the trial brought his case within the authority of those holding that a contract between brokers to co-operate in the sale of real estate for a division of the compensation to be thereby earned is valid and enforceable although not in writing. The