[2] Appellant contends that error was committed in the reception of evidence in another particular. The prosecution introduced evidence to show that about eight months after the alleged commission of the offenses charged in the information, the defendant committed a similar offense in that he made, executed, and delivered a forged deed of real property purporting to be from a nonresident named Walters, and the acknowledgment to which was also represented as being before a notary public who was shown to have been fictitious.

The instant case is of the type where proof of other offenses may appropriately be admitted. One of the elements of the crime of forgery necessary to be established is the intent to defraud, prejudice, and damage some person. Another is knowledge of the defendant that the instrument in question was forged. The nature of the transaction is not such that proof of the commission of the acts necessarily involves a conclusive implication of guilty knowledge or intent. The defendant might have been honestly mistaken and in good faith have received a deed from some person calling himself Kinmounth and have innocently recorded it and subsequently alienated the land to another. If this were true there could have been no intent to defraud the real owner of the property. But proof of the fact that the defendant passed or uttered another forged deed under similar conditions established a logical inference that guilty knowledge and intent to defraud accompanied the criminal acts otherwise shown which constitute the body of the offense.

We conclude, therefore, that the court did not err in the particular specified by appellant in receiving evidence. From an examination of the transcript and considering the facts before stated as established, we are satisfied that the evidence is sufficient to warrant the verdict of guilty returned by the jury.

The judgment is affirmed.

Finlayson, P. J., and Works, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 3, 1923.

[Civ. No. 2600. Third Appellate District.-May 4, 1923.]

JOHN GULART, Respondent, v. JOAQUIN B. AZEVEDO, Appellant.

[1] CONTRACTS - UNDISCLOSED MENTAL ATTITUDE. An undisclosed mental attitude can never constitute the basis of a contractual obligation.

[2] BROKER'S COMMISSIONS-AUTHORITY TO CONTRACT-WHEN COMMISSION EARNED.-Where a real estate broker is employed, under an exclusive agency contract, to "contract with the purchaser for the sale and conveyance" of certain real property, such broker is entitled to the agreed commission only when he has secured a binding contract for the sale of the property upon the terms specified in his contract, and not merely upon the procuring of a purchaser with whom the vendor might so contract.

[3] ID.-PURCHASE SUBJECT TO MORTGAGE-OUTSTANDING CONTRACT OF PURCHASE. An agreement to purchase land subject to an outstanding mortgage for a specified sum does not constitute an agreement to purchase the land where the title thereto is in a third person and the vendor merely holds a contract of purchase under which such sum is due.

INCORRECT INFORMATION.

[4] ID. ADMISSION OF LIABILITY - The owner of land cannot be held liable for broker's commissions based upon admissions of liability made by him in letters to such broker, where those admissions were based upon incorrect information given by the broker to the owner.

[5] ID. POWER OF ATTORNEY AUTHORITY OF AGENT.- Where the owner of land, after giving a real estate broker exclusive authority to effect a sale of the property upon certain specified terms, executes a power of attorney whereby a third person is given authority "to do all acts necessary or proper for the transfer of any real property or interests therein owned by" the maker, such power of attorney will be construed as authorizing the attorney therein named to make the formal transfer of the property but not as giving him any discretion in fixing the terms and conditions of a sale. (On denial of rehearing.)

APPEAL from a judgment of the Superior Court of Stanislaus County. L. W. Fulkerth, Judge. Reversed.

2. Effect of contract expressly making broker's right to commission dependent upon sale of property or other condition beyond that ordinarily implied, note, 29 L. R. A. (N. S.) 533.

Performance of contract of real estate broker to find a purchaser, notes, 139 Am. St. Rep. 225; 44 L. R. A. 593.

The facts are stated in the opinion of the court.

Hawkins & Hawkins, L. E. Jones and Rose, Silverstein & Collier for Appellant.

Whitehurst & Logan for Respondent.

FINCH, P. J.-The plaintiff was given judgment for $3,500, with interest thereon, alleged to be due as commissions for the sale of defendant's land. The defendant's motion for a new trial was denied and this appeal is from the judgment.

The court found that on the twenty-fourth day of May, 1919, the defendant executed and delivered to plaintiff a writing containing the following provisions: "I have this day placed with John Gulart for sale the property described on the reverse side of this card, of which I am the owner. The said John Gulart shall have the sole and exclusive agency of the property for nine months from date hereof and I authorize him to sell and convey, and contract with the purchaser for the sale and conveyance by good and sufficient title to said property, according to the prices and terms of payment herein specified. . . . Price of property to be $30,000.00 net. If the said property be sold or disposed of during the period above stated. . . I agree to pay John Gulart a commission as follows: All over and above $30,000.00 when sale is complete. . . . Terms: All cash, or $13,000.00 cash and balance to be encumbrance paid in 8 years from date of sale. Notes to bear interest at 6 per cent.'

After the execution of the contract and before any purchaser was found by plaintiff, the defendant went to the Azores Islands, where he remained until after this action was commenced. Before so departing, the defendant duly appointed F. P. Gomez, Jr., his attorney in fact, "with full power and authority to convey real property and interests therein... and to accept and receive payment therefor," and informed plaintiff that Gomez "was going to attend to his business" during his absence.

On the fifteenth day of November, 1919, plaintiff, in the name of and as the agent of defendant, entered into an agreement with Mike and George Sequeria for the sale of

the land to them and containing, among other terms, the following: "Whereas, there is a mortgage lien standing of record against said property in the sum of $17,000.00, . . . the party of the first part agrees to sell said sixty acres ranch above mentioned to the parties of the second part for the sum of $16,500.00 cash, and the assuming of said mortgage by said parties of the second part, and the parties of the second part agree to buy said property and pay $16,500.00 cash therefor, and to assume and pay when due said mortgage of $17,000.00, and said Mike Sequeria has this day paid to said John Gulart, agent as aforesaid, the sum of $1,000.00, which sum shall be held by said agent and at the time of consummating said transfer said sum shall be applied on the cash purchase price." The sum of $1,000 was paid to plaintiff in accordance with the terms of the agreement.

Immediately after the execution of the agreement with the Sequerias, plaintiff exhibited the same, together with the listing contract, to Gomez and told him that he "had got the Sequerias as purchasers and that they were willing to buy the place according to the contract with Azevedo," although neither the plaintiff nor the Sequerias then knew the nature of defendant's title. Plaintiff asked Gomez at that time to execute a deed as defendant's attorney in fact, conveying the land to the Sequerias upon their compliance with the terms of their agreement. Gomez "said it was all right," but declined to make a conveyance on the ground that "he would like to take it up with Mr. Azevedo first," but stated that he would cable defendant regarding the matter and "ask him if it was satisfactory." Plaintiff later cabled the defendant as follows: "I sold your ranch per contract. Approve sale by cablegram at once at my expense." Having received no reply to the cablegram, the plaintiff, on January 17, 1920, wrote defendant, saying: "I have sold your ranch on the following terms per your contract, $13,000.00 cash to you and purchasers will assume contract," and inclosing draft of a quitclaim deed to be executed by defendant and his wife and then forward it to a local bank, with instructions to deliver the same upon receipt of $13,000. Under date of February 14, 1920, defendant wrote plaintiff as follows: "We have been visiting for a few months in Terciara. When we returned we found

the papers and telegram waiting us at the postoffice. I am sending you the paper back as my wife does not want to sign; without her signing nothing else can be done." Plaintiff testified that it takes a letter fifteen days or more to reach here from the Azores, and it follows that he could not have received defendant's letter prior to the expiration of his agency.

Shortly after the execution of the agreement with the Sequerias the plaintiff discovered that there was not a mortgage on the land, but that defendant held the property under a contract of purchase from F. T. and V. T. Freitas, in whom the legal title was vested, and that there remained unpaid on the contract price the sum of $17,000, bearing interest at six per cent per annum, the indebtedness being payable in full in about eight years after the date of the listing contract. Plaintiff immediately informed the Sequerias of these facts, but no change was made in the agreement and the evidence does not show that they offered or agreed, during the life of the listing contract, to purchase the property on the terms therein stated, or on any terms other than those contained in their written agreement, or that, during said time, they ever expressed, to plaintiff or to any other person, a willingness, even, to take the property and assume payment of defendant's indebtedness to Freitas brothers. One of the Sequerias testified that they were in fact willing to so take the property, but he did not say that such willingness was made known to anyone. [1] Of course, an undisclosed mental attitude can never constitute the basis of a contractual obligation. After the expiration of the period during which plaintiff was authorized to sell the property, the Sequerias offered to purchase the same and assume payment of the indebtedness to Freitas brothers and indorsed on their written agreement an extension of defendant's time to make the transfer, but defendant had nothing to do with securing such extension, nor did he do anything which would make him a party thereto. No offer by the Sequerias or agreement between them and plaintiff, made after the expiration of the latter's authorization to sell, was binding upon defendant. As stated, plaintiff wrote defendant that the Sequerias had agreed to purchase the land and pay the balance due Freitas brothers. The latter part of the statement, however, was contrary to