the fact. From what has been said it is apparent that plaintiff was not entitled to judgment on the theory that he had procured a purchaser who was ready, willing, and able to buy on the authorized terms, even if it be conceded that, under the listing contract, he would have earned a commission by merely finding such a purchaser and introducing him to defendant, and his right to a judgment, if any, must be founded on his written agreement with the Sequerias.

The complaint alleges, and the court finds, that, at the time the listing contract was executed, it was the understanding of the parties that, if the purchase price was not all paid in cash, the purchaser should assume and pay the balance owing from defendant to Freitas brothers. Plaintiff did not himself so understand, but one of his employees, who procured the contract from defendant, understood the meaning thereof to be as alleged and found, and he so testified at the trial. Appellant contends that this finding is not supported by the evidence. In view of the conclusion reached on other questions, the point so made necd not be decided.

[2] The listing contract was not a mere authorization to procure a purchaser ready, able, and willing to buy, but the plaintiff was employed to "contract with the purchaser for the sale and conveyance" of the land. The plaintiff was appointed defendant's agent to execute a binding contract for the sale of the property rather than to find a purchaser with whom the defendant might so contract. The fact that the defendant was about to depart on an extended trip abroad, during which it would be impracticable for him to negotiate directly with a prospective purchaser, and the fact that plaintiff attempted to make a binding contract of sale, throw light upon the intention of the parties. "A broker employed to sell real estate may be authorized and required by the terms of his undertaking, not only to find a purchaser, but even to conclude an actual transfer, or at least to procure from the purchaser a valid written agreement binding him to purchase upon the terms specified; and where this is his undertaking the broker has not earned his commission until he has performed it or the principal has accepted a less complete performance." (Mechem on Agency, 2d ed., sec. 2428.) In Cunningham v. Friendly, 70 Or. 222 [139 Pac. 928, opinion on rehearing, 140 Pac. 989], the contract under consideration provided:

...

"We hereby appoint you exclusive agent to make sale of the real property herein described. . . . And you are hereby authorized to accept a deposit to be applied on the purchase price, and to execute a binding contract for sale on our behalf." The court said: "The plaintiff was not employed to find a purchaser for the lots and to bring the purchaser and seller together. . . . Plaintiff relies upon the fact that he brought Rocky and Friendly together, but that does not bring plaintiff within his contract to sell." (See, also, Bacon v. Davis, 9 Cal. App. 83 [98 Pac. 71]; Pfanz v. Hamburg, 82 Ohio St. 1 [29 L. R. A. (N. S.) 533, 91 N. E. 863]; Wiggins v. Wilson, 55 Fla. 346 [45 South. 1011]; Elliot v. Gamble, 77 Fla. 798 [82 South. 253]; Kerfoot v. Steele, 113 Ill. 610; Burnett v. Potts, 143 Ill. App. 160; Ormsby v. Graham, 123 Iowa, 202 [98 N. W. 724].)

[3] Plaintiff's right of recovery depends upon whether his agreement with the Sequerias bound them to purchase the land under the terms of the listing contract. The rights of a mortgagor and those of a vendee under a contract of purchase are essentially different. If a mortgagor fails in his payments and the mortgage is foreclosed, he is allowed the statutory period for redemption. No such statutory right is given a vendee under an executory contract of sale. Such contracts frequently provide for the forfeiture of the vendee's rights thereunder on his failure to make payment at the precise time specified. The terms of the contract between defendant and Freitas brothers are not shown by the evidence. If plaintiff relies on their being the same as those of a mortgage, it devolved upon him to establish that fact. It is very clear that the Sequerias were not bound to purchase the property on the terms provided by the listing contract.

[4] In two letters written by defendant prior to his return to this country, he made statements which might be construed as admissions of plaintiff's right to the alleged commissions. These letters were written after plaintiff had informed defendant that the property had been sold in accordance with the terms of the listing contract and that the purchasers would assume payment of defendant's indebtedness to Freitas brothers. An admission based on incorrect information given by the plaintiff is of no weight in his favor. The defendant was not informed of the terms of 62 Cal. App.-8

plaintiff's agreement with the Sequerias during the life of the listing contract, and, therefore, it cannot be held that he assented thereto or waived any objections he may have had to the same. Gomez saw the agreement but it was not shown that he was authorized to sell the property or to change the terms of plaintiff's contract with defendant. It only appears, and that merely by reason of a defective. denial in the answer, that Gomez was authorized to convey land and receive payment therefor. Plaintiff himself was given "the sole and exclusive agency" for the sale of the land. In attempting to exercise the authority conferred upon him, he made such a mistake that neither the defendant nor the purchasers were bound by the agreement which he executed. After the discovery of such mistake, there remained three months during which he might himself have corrected the mistake if, as he alleges, the Sequerias were willing. His failure to earn the alleged commission, if it be finally decided that he has so failed, is due to his own neglect.

Respondent contends that, by refusing to convey the property on the sole ground that his wife would not sign the quitclaim deed sent to him for execution, the defendant waived all other objections that he had an opportunity to make at that time. The simple answer is that defendant did not then have the opportunity to make the objections here relied on, because of plaintiff's incorrect statement that the land had been sold in accordance with the terms of the listing contract. Had that statement been true, the defendant could have made no objection which would have been a defense to this action.

Some of the denials in the answer are so defective in form as to constitute admissions. The foregoing discussion is based upon the effective denials of defendant. The defendant did not take the witness-stand or offer any evidence, but submitted the case on the evidence produced by plaintiff. It has been assumed, therefore, that all of plaintiff's witnesses are entitled to the fullest credit. The judgment is reversed.

Hart, J., and Burnett, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on June 2, 1923, and the following opinion then rendered thereon:

THE COURT.-In respondent's petition for a rehearing it is urged that "the word 'encumbrance' used in the listing contract. . . was understood by Gulart to mean a mortgage, and that plaintiff was led so to believe by defendant's statements made at the time such contract was executed. It is argued that because the defendant had so misled the plaintiff the latter became entitled to a commission when the Sequerias agreed to purchase the property subject to such mortgage. Counsel, however, overlook the fact that the plaintiff alleged and the court found, on sufficient evidence introduced by plaintiff, that at the time the listing contract was executed "the legal title to said premises was . . . vested in F. T. Freitas and V. T. Freitas, subject to an agreement of purchase and sale whereby said F. T. Freitas and V. T. Freitas agreed to sell said premises to defendant ... and that at all times said defendant owed the sum of $17,000.00 or thereabouts on the purchase price of said premises under said contract... and that at the time of execution of said listing it was the understanding of plaintiff and defendant . . . that in case said purchase price of $30,000.00 was not paid in cash, the purchaser, as part of said purchase price, should assume said encumbrance owing by defendant on said land to said F. T. Freitas and V. T. Freitas and pay same when due."

It is contended that the statement in the opinion to the effect that Gulart was employed to make a sale, rather than merely to procure a purchaser to whom the defendant might sell, is in conflict with the rule announced in Merriam v. Wickersham, 141 Cal. 567, 570 [75 Pac. 1801. An examination of the transcript in that case discloses that the listing contract there under consideration was unlike the one in this case. By it the owner authorized the agent "exclusively to sell," and "to receive a deposit" and the owner agreed to convey the property "to any purchaser found by" the agent and to pay the agreed commission "if a purchaser is found by or through" the agent. There is no inconsistency between the decision in Merriam v. Wickersham and the opinion herein or the cases cited therein.

[5] It is insisted that the allegation in the complaint, admitted by a defective denial in the answer, to the effect that Gomez was given a "general power of attorney" by defendant was sufficient to show that Gomez "had power to

act for Azevedo in all things just as Azevedo could have done if personally present, and any act, word, or omission of Gomez which would have rendered him liable if he had been the owner will render Azevedo liable. Plaintiff's allegation, however, goes further than stated. It is alleged that "defendant executed and delivered to one F. P. Gomez, Jr., his certain general power of attorney, in writing, duly executed and acknowledged, in which said power of attorney he appointed said F. P. Gomez, Jr., his attorney in fact with full power and authority to convey real property and interests therein and to execute all necessary and proper transfers and conveyances thereof and to accept and receive payment therefor and, generally, to do all acts necessary or proper for the transfer of any real property or interests therein owned by defendant." "Where the authority to perform specific acts is given in the power, and general words are also employed, such words are limited to the particular acts authorized." (Billings v. Morrow, 7 Cal. 172, 175 [68 Am. Dec. 235]; Moore v. Gould, 151 Cal. 723, 728 [91 Pac. 616].) Authority "to do all acts necessary or proper for the transfer of any real property or interests therein owned by defendant" does not include the power to sell land or to agree upon the terms of sale thereof or to modify terms theretofore fixed by the owner, especially where another person has been given exclusive power to execute a contract of sale upon specified terms. The complaint alleges that the power of attorney was executed after the making of the listing contract and before the departure of defendant from California. From the whole of the surrounding circumstances it is apparent that the power of attorney was executed to enable Gomez to make the formal transfer of the property during the absence of defendant and not to give the former any discretion in fixing terms of sale. Gomez had no duty to perform until plaintiff made a sale in accordance with the terms of the listing contract, and no such sale was made, nor was Gomez ever informed that the Sequerias were willing to purchase the land on any other terms than those stated in their agreement with plaintiff, nor did they express such willingness to any person during the life of the listing contract.

It is contended that the answer admits that the Sequerias were "ready, able, and willing to assume the Freitas con