in their favor of $1,319.40, instead of a balance against them of $230.60, as found by the court.

[1] Appellants do not question the correctness of those findings whereby the court found that they had been guilty of fraud in the execution of their employment as respondent's agents. The sole point urged by them is that the court erred in not crediting them with a reasonable compensation for their services in negotiating for the sale of the hotel property to plaintiff. The contention lacks merit. This rule is so general as to be trite that if a broker is guilty of fraud in the execution of his agency, or is not faithful to his trust, his right to compensation is lost. (9 C. J., p. 566; Hageman v. Colombet, 52 Cal. App. 350 [198 Pac. 842]; Harrison v. Craven, 188 Mo. 590 [87 S. W. 962].)

The judgment is affirmed.

Works, J., and Craig, J., concurred.

[Civ. No. 3830. Second Appellate District, Division Two.-June 20, 1923.]

CHARLES COHN, Appellant, v. JOSEPH CHAIN et al., Respondents.

[1] BROKER'S COMMISSION-FRAUDULENT BREACH OF TRUST-FORFEITURE OF COMPENSATION.-Where real estate brokers employed to negotiate for the sale to their principal of certain real property repudiate their agency, purchase the property themselves, and then resell it to their principal, misrepresenting to him the amount necessary to meet the purchase price and take care of incidental expenses, they forfeit all right to compensation for their services.

APPEAL from a judgment of the Superior Court of Kern County. T. N. Harvey, Judge. Affirmed.

The facts are stated in the opinion of the court.

1. Fraud and secret dealings of real estate broker as affecting their commissions, note, 45 L. R. A. 33.

Emmons & Aldrich for Appellant.

Kaye & Siemon and L. E. Nathan for Respondents.

FINLAYSON, P. J.-Plaintiff, as the assignee of H. C. Katze and L. G. Helm, brought this action on a nonnegotiable promissory note for the principal sum of $1,660, and to foreclose a mortgage given to secure its payment. The note and mortgage were executed by defendants, as makers and mortgagors, to Katze and Helm as the payees and mortgagees. Defendants' answer alleges that the note. was given without any consideration therefor and that it was fraudulently procured by the payees. Judgment passed for defendants and plaintiff appeals.

The facts of this case are closely related to those involved in Chain v. Katze et al., ante, p. 615 [217 Pac. 578], and grow out of the same transaction. [1] The payees, who had been employed by the defendant Joseph Chain as real estate brokers to negotiate for the purchase by him of certain hotel property in the city of Bakersfield, fraudulently represented to the latter that the purchase price was $34,000, whereas its price was but $31,000. Moreover, plaintiff's assignors, in furtherance of their scheme to defraud these defendants, repudiated their agency as such real estate brokers employed to negotiate for the sale of the property to their principal and represented to him that they themselves had purchased the property and were reselling it to him. By reason of this fraudulent breach of trust the defendant, Joseph Chain, to complete the sum which he was led to believe would be necessary to meet the full amount of the misrepresented purchase price and to take care of certain incidental expenses, gave to Katze and Helm the promissory note in question, executed by himself and wife. The trial court, having found the facts in defendants' favor, entered a judgment canceling the note and mortgage.

Appellant urges that his assignors should have been allowed a reasonable compensation for their services as brokers in negotiating for the purchase of the hotel property. This sum, they claim, should be five per cent of the actual selling price, i. e., five per cent of $31,000. Had the trial court allowed Katze and Helm this sum for their

services in bringing about the sale of the property to their principal there would have been a balance due to them from Joseph Chain amounting to $1,319.40; and it is claimed that to this extent at least there was a valuable consideration for the note. This is the sole point made on this appeal. On the authority of Chain v. Katze et al., supra, it must be held that Katze and Helm, because of their faithlessness in the execution of their agency as real estate brokers employed by Joseph Chain to represent him in the purchase of the hotel property, forfeited all right to compensation for their services.

The judgment is affirmed.

Works, J., and Craig, J., concurred.

[Civ. No. 4428. First Appellate District, Division One.-June 21,

1923.]

R. F. McKESSON, Respondent, v. ISRAEL HEPP,

[1] PLEADING-COMPLAINT

Appellant.

RE

ANSWER-ISSUES-PRAYER-AMENDMENTRELIEF. In an action to recover a sum due for goods sold and delivered, in which the defendant files an answer and counterclaim, the trial court may, under section 580 of the Civil Code, grant the plaintiff relief in addition to that sought in his complaint, without an amendment for that purpose alone, when such relief is not inconsistent with the pleadings and the issues tried. [2] ID.-WAIVER OF FINDINGS-EXCESSIVE JUDGMENT - - APPEAL VERSAL.-Where findings in such an action are waived but the record on appeal from the judgment in favor of the plaintiff shows, without conflict, that defendant was entitled under one of his items of counterclaim to a certain credit and that, therefore, the judgment to that extent, with the interest allowed thereon, is excessive, the appellate court being without authority to make findings upon the subject, the judgment must be reversed unless the excess is remitted.

APPEAL from a judgment of the Superior Court of Santa Clara County. F. B. Brown, Judge. Affirmed conditionally.

The facts are stated in the opinion of the court.

Owen D. Richardson for Appellant.

James M. Thomas for Respondent.

TYLER, P. J.-This action was brought to recover the sum of $467.46 for goods sold and delivered, with interest thereon from October 21, 1921. The complaint was filed November 25, 1921. The answer denied the indebtedness and set up a counterclaim in the sum of $164.09. The case went to trial and plaintiff recovered judgment on June 23, 1922, for the sum of $474.66, with interest from the sixteenth day of July, 1921, amounting to the sum of $7.20. Upon both principal and interest, it will be noticed, the judgment is in excess of the amount prayed for.

Findings were waived.

The evidence upon the trial-which is before us-shows without conflict that defendant was entitled to a credit in the sum of $44.09 under one of the items of his counterclaim. Defendant sought to have the matter corrected upon motion for a new trial. His motion was denied. He is here asking for a modification of the judgment. There is no contention with reference to this state of the record. At the hearing of the motion for a new trial plaintiff contended, and does here, that inasmuch as findings were waived the defendant is in no position to take advantage of the situation and is without remedy.

[1] The judgment, in so far as it awards plaintiff an amount in excess of that which he prayed for, is not for that reason objectionable. Section 580 of the Code of Civil Procedure provides: "The relief granted to plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint, but in any other case the court may grant him any relief consistent with the case made by the complaint and embraced within the issue." The relief provided for by this section is confined in case of default to that demanded in the complaint, as was the rule under a prayer for special relief in equity; while in other cases it is extended to granting relief similar to that granted under a prayer for general relief in chancery courts. (Johnson v. Polhemus, 99 Cal. 240 [33 Pac. 908].) The

section is but a concise statement of the rule observed upon the subject of relief in courts of equity (Moch v. Santa Rosa, 126 Cal. 330 [58 Pac. 826]). A court may, therefore, under the section grant additional relief under the original complaint, without an amendment thereof for that purpose alone, when the relief is not inconsistent with the pleadings and the issues tried (Kent v. Williams, 146 Cal. 3 [79 Pac. 527]; Securities Loan Co. v. Boston etc. Fruit Co., 126 Cal. 418 158 Pac. 941, 59 Pac. 296]; Murphy v. Stelling, 8 Cal. App. 702 [97 Pac. 672]). Here there is evidence to show that plaintiff was entitled to the additional amounts allowed him. This being so, there is no merit in appellant's contention that the relief granted should have been confined to the amount stated in the prayer of the complaint.

[2] The evidence, however, shows, and without conflict, that defendant was entitled under one of his items of counterclaim to a credit of $44.09 for freight paid by him. The judgment, therefore, to this extent, with the interest allowed thereon, is excessive. We are without authority to make findings upon the subject, and the judgment must accordingly be reversed unless the excess is remitted. If respondent shall within thirty days file in this court a stipulation to the effect that the judgment may be modified by reducing the amount $49.10, with the interest allowed thereon, the judgment thus modified is affirmed; otherwise it is reversed. The appellant shall recover costs on this appeal in either event.

Richards, J., and St. Sure, J., concurred.