for a consideration of $8,000 net to me. sixty days from this date. D. Hutton."

This option to be good for

3. That thereafter, to wit, on the 1st day of August, 1905, the defendant, G. L. Holton, executed and delivered to the plaintiff, in the said city of Los Angeles, for a valuable consideration, the following agreement, to wit: "Los Angeles, Cal., August 1, 1905. This certifies that L. R. Myers, real estate agent, introduced us by letter to D. Hutton of Searchlight, Nevada, and that we, B. W. Gerhart and G. L. Holton, are to see Mr. D. Hutton and look at his Colorado River ranches with a view of buying the property. We agree to protect the said L. R. Myers in the matter of his commission, if we, or our assigns, purchase the said property. G. L. Holton."

4. That thereafter, to wit, on or about the 1st day of September, 1905, the defendant and the said D. Hutton entered into an agreement of sale wherein the said Hutton agreed to sell to the defendant the property referred to in the foregoing instruments, and the defendant is now in the possession of the said property under said agreement, and is now, with the said Gerhart, the owner of the said property.

5. That the agreed purchase price of the said property was the sum of $12,000, of which the sum of $8,000 was to be paid to the said D. Hutton and the remaining $4,000 was to be paid to the plaintiff.

6. That plaintiff is informed and believes, and upon such information and belief alleges, that the said sum of $8,000, to be paid as aforesaid to said D. Hutton, has been paid.

7. That the said sum of $4,000, to be paid to plaintiff as hereinbefore alleged, has not been paid, nor any part thereof, except the sum of $500; and that the sum of $3,500, to be paid by the defendant to the plaintiff, remains wholly due, owing, and unpaid.

Wherefore, plaintiff prays judgment against the defendant for the sum of $3,500, and for costs of suit.

[Verification.]

Andrew G. Park, and

Theodore Park,

Attorneys for plaintiff.

§ 339. ANSWERS.

FORM No. 704-Defense denying agency.

[Title of court and cause.]

[After introductory part:]

For a separate defense against the complaint of plaintiff herein, defendant denies that the party alleged in said complaint to

have executed said deed [or other instrument], was defendant's agent for any purpose, or that said had authority to make or execute or deliver any deed [or other instrument] conveying any right, title, or interest in or to the property described in the complaint herein.

[Prayer, etc.] [Verification.]

C. D., Attorney for defendant.

FORM No. 705-Defense based upon special contract as to commissions. (In Beatty v. Russell, 41 Neb. 321; 59 N. W. 919.)

[Title of court and cause.]

[After introductory part:]

Defendant denies that he employed the plaintiff to sell the land referred to in said petition, but avers the fact to be that the firm of G. & B., composed of G. H. G. and the plaintiff, as partners, were employed to sell said farm upon the terms that the defendant was to receive $4,800 clear of all commissions for the land, and the said G. & B. were to have all over said $4,800 as their commission; and if they sold the land for only $4,800 they were to have no commission from the defendant. Defendant further avers that said land was sold for $4,800, and no more, and therefore no commission whatever is due the plaintiff. [Prayer, etc.]

C. D., Attorney for defendant.

FORM No. 706-Defense including counterclaim for damages for disobeying principal's orders in regard to stock transactions. (In Galigher v. Jones, 129 U. S. 193; 9 Sup. Ct. 335; 32 L. ed. 658.) [Title of court and cause.]

[After introductory part:]

1. That plaintiff is a banker at Salt Lake City, and that the defendant has had for two years last past an account with him as such; that the plaintiff, at the defendant's request, and as his agent, bought, or caused to be bought, at the Mining Stock Exchange Board

of San Francisco, California, certain mining stocks for and on account of this defendant, and at various times thereafter in 1877 and 1878, on the order and at the direction of this defendant, and as his agent aforesaid, bought and sold mining and other stocks up to about the date of the filing of said complaint; that at divers times during and between the dates above specified this defendant paid into plaintiff's bank sums of money on account of said purchases, and to the credit thereof, and which were so applied by plaintiff on defendant's order. 2. Defendant denies that at the date of the filing of the complaint the sum of five thousand dollars, or any sum, was due to the plaintiff on said account, or on any account, for loans or advances from plaintiff to defendant. Defendant alleges that it was agreed between the plaintiff and this defendant, in the transaction of the business of purchases of said stock by the plaintiff, that the same were made on defendant's credit, and that said stock was bought, and was to be held, subject to defendant's order at all times, this defendant agreeing to pay said plaintiff commissions for his services as agent and an agreed rate of interest on any advances he might make; that at no time had the plaintiff any authority to either buy or sell stock on defendant's account except by his order.

And by way of counterclaim the defendant alleges:

1. That on the 13th day of November, 1878, being at Virginia City, he ordered the plaintiff, who was then at Salt Lake City, by telegraphic dispatch, to sell certain mining stocks then in his hands as defendant's agent, to wit, 320 shares of Justice stock, worth $9 per share; 50 shares of Alta stock, worth $8 per share; 200 shares of Tip Top stock, worth $1.60 per share; and to invest the proceeds in North Bonanza stock, another mining stock on the same board, and which the defendant had been investigating; that the plaintiff received this dispatch in ample time to make the transaction as directed on that day, but refused and neglected to do so; that the defendant relied on its being done, and agreed with another party to sell the stock he had ordered purchased; that the plaintiff did not give notice to the defendant of his refusal to comply with said order until several days afterwards, and then by letter; that afterwards, and without any order or orders so to do, the plaintiff sold said Alta stock at $7.75 per share, said Justice stock at $4.40 per share, and said Tip Top stock at $1.25 per share, making a net loss to defendant of $1,200; that the said North Bonanza stock was worth more than $2 per share

on the said date, and that within five days thereafter it advanced to $5.60 per share, which latter amount per share the defendant would have realized if plaintiff had complied with said order, whereby the defendant, through said disobedience of orders in regard to said last-named stock, lost the sum of $6,125.

Defendant further alleges, that in the month of November, 1878, the plaintiff, as defendant's agent, held for defendant 600 shares of the mining stock known as Challenge stock, and, without his consent, on the 27th and 29th of said month of November, sold the same for his, the plaintiff's, own use, to the damage of defendant in the sum of $2,850.

3. That on the 22d day of November, 1877, the plaintiff held for the defendant, as his agent as aforesaid, 50 shares of mining stock known as Ophir stock, worth at that date $37.50 per share, and on that day represented to defendant that he had sold said stock for defendant, and so reported to him, when in fact he had not sold said. stock, but continued to hold the saine, and afterwards sold it for $100 per share, the advance amounting to $3,125, which is justly due from the plaintiff to the defendant.

[Prayer, etc.]

C. D., Attorney for defendant and counterclaimant.

[Verification.]

Form of complaint in an action by a broker for commissions: Rogers v. Duff, 97 Cal. 66, 67, 31 Pac. 836.

Form of findings of fact and of law in an action to recover commission for the sale of land, by the plaintiff, who procured a purchaser in compliance with the terms of a contract made with the defendant: Robinson v. Kindley, 36 Kan. 157, 12 Pac. 587.

§ 340. ANNOTATIONS.-Agency.

1. Distinction between contract to find purchaser and contract to sell.

2. Parol contract to find purchaser.

3. Oral offer to buy.

4. Formal tender of purchase price.-When unnecessary.

5. Action to recover commission.-Complaint held sufficient.

6. Agency. When admitted by the pleadings.

7. Departure by agent from his authority.

8, 9. Ratification by municipal corporation of unauthorized agent's acts.-Pleading ratification.

10. Agent suing alone.

1. Distinction between contract to find purchaser and contract to sell.-A distinction is made between the cases where the plaintiff's employment was merely to find a purchaser and cases where the employment was to sell. In Jury's Pl.-85.

the following cases the right of the agent to his commissions on finding a purchaser ready, willing, and able to purchase was upheld: Finnerty v. Fritz, 5 Colo. 174; Smith v. Fairchild, 7 Colo. 510, 4 Pac. 757; Buckingham v. Harris,