a public street, the subsequent adoption of an official map having a line across the mouth of the extension of the street is not sufficient to divest the public of their right. Even if the local board had power to effect such a result, the mere drawing of a line upon a map is not an exercise of the power.

There was no material error in the admission or rejection of evidence. Nor do we see any error in the instructions. But if there had been it would have been immaterial; for the above facts being uncontradicted, the court might properly have instructed the jury to find for the plaintiff.

We therefore advise that the judgment and order be affirmed.

VANCLIEF, C., and BELCHER, C. C., concurred.

The COURT.-For the reasons given in the foregoing opinion, the judgment and order are affirmed.

THORNTON, J., concurring.-I concur in the judgment, and generally in what is said in the opinion, but do not wish to be understood as approving what is said in People v. Reed, referred to in the opinion.

Rehearing denied.

[No. 12738. Department Two.-May 2, 1890.]

WILLIA

HENRY PHELPS ET AL., RESPONDENTS, v. WILLIAM PRUSCH, APPELLANT.

BROKER TO SELL LAND-CONTRACT OF-PERFORMANCE.-The contract of a broker who undertakes to sell a tract of land is that he will find a purchaser who is ready to buy on the specified terms; and when he produces such a purchaser he performs his contract.

ID. FAILURE OF TITLE-COMMISSION.-The commission of the broker does not depend upon the validity of the title to the land. It is not his fault if the sale falls through for want of a valid title, and his commission is not lost thereby.

ID.-PREVENTION OF SALE BY OWNER.-If the owner takes steps to make

the intended purchaser believe that the title is bad, and the latter refuses to proceed with the transaction in consequence, the broker is entitled to his commission. ID.-DEPOSIT-RETURN OF NOTICE TO OWNER.-The commission of the broker has no relation to the question as to the return of the deposit. If the deposit is in the hands of the broker, to be returned if the title does not prove good, he may return it in the cases above mentioned, without notice to the owner, without affecting his right to a commission.

APPEAL from a judgment of the Superior Court of Santa Clara County.

The facts are stated in the opinion.

T. H. Laine, for Appellant.

A. S. Kittredge, for Respondents.

HAYNE, C.-This was an action to recover $1,160.75 as broker's commissions for negotiating a sale of real property. The trial court gave judgment for the plaintiffs, and the defendant appeals.

The evidence is not brought up, and the findings must therefore be taken to correctly set forth the facts of the case, which are as follows:

The defendant authorized one Dunn, the assignor of the plaintiffs, to sell a tract of land then possessed and claimed by defendant, at a price not less than $23,125, and promised in writing that he "should receive from defendant, as commissions for making such sale, the sum of five per cent upon the full amount for which said property should be sold, and that, upon deposit of ten per cent of the purchase price by the purchasers, the defendant would furnish to him a complete and perfect abstract of title thereto."

Dunn procured purchasers who were willing to take the property at $23,215, and who deposited with him ten per cent of this amount, taking a written receipt containing the following clause: "Title to prove good or no sale, and this deposit to be returned." The defendant

"was immediately informed of said sale and its terms, and expressed himself as satisfied therewith, and acquiesced therein"; and an abstract of title was prepared at the instance of Dunn and given to the purchasers, who placed it in the hands of their attorney. A few days after the arrangement, "the defendant became dissatisfied with the price at which the property had been sold, and exerted himself to cast suspicion upon, and to impeach and discredit, his title in order to prevent a consummation of said sale." He first went to the plaintiff Smith, who had assisted Dunn in negotiating the sale, and offered to pay him the amount of the commission if he would break up the sale. Smith declined the proposition. The defendant then went to the attorney for the purchasers, who was examining the abstract of title, and gave him notice of certain matters which induced him to reject the title. The purchasers thereupon refused to complete the purchase, and demanded the return of their deposit, which was thereupon returned to them by Dunn, without the knowledge or consent of the defendant.

Upon these facts we think that the judgment in favor of the plaintiffs was clearly right. The contract of the parties was not that there should be an actual transfer of the title, or a valid contract for such transfer. It was merely that the broker should find a purchaser who was willing to buy upon certain terms. (Duffy v. Hobson, 40 Cal. 244; 6 Am. Rep. 617; Armstrong v. Lowe, 76 Cal. 616.) This being the contract on the broker's part, it was performed when he produced purchasers who were willing to buy upon such terms. (Phelan v. Gardner, 43 Cal. 311.) It makes no difference whether the defendant had a good title or not. If he had not a good title, and the transaction failed in consequence, that was not the broker's fault, and is no reason why he should lose his commission. (Middleton v. Findla, 25 Cal. 76.) If he had a good title, but took measures to have it rejected by the purchasers' attorney for the purpose of defeating the

sale, it needs no argument or authority to show that the broker's right to a commission is not thereby defeated.

It is immaterial that Dunn returned the deposit to the purchasers without the knowledge or consent of the defendant. The condition upon which he held it was that it should be returned if the title should not "prove good." If the title was not in fact good, it was the duty of the depositary to make the return. If the title was good, but the defendant, for the purpose of defeating the sale, induced the purchasers to believe that it was bad, and to act upon such belief, he had no more right to have the deposit retained than he had to deprive the broker of his commission. It makes no difference upon whom the demand for a return of the deposit was made, or whether it was returned or not. The complaint was drawn with unusual precision, and the demurrer was properly overruled.

We therefore advise that the judgment be affirmed.

GIBSON, C., and VANCLIEF, C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment is affirmed.

[No. 12732. Department Two.-May 2, 1890.]

ANDREW CRAWFORD, RESPONDENT, v. INDEPENDENT STOVE PIPE WORKS ET AL., DEFENDANTS. CATHERINE BORNHEIMER, APPELLAnt.

APPEAL-REVIEW OF CONFLICTING EVIDENCE--PROVINCE OF JURY.When the evidence is substantially conflicting, the verdict of the jury will not be disturbed on the ground of the insufficiency of the evidence to justify the verdict. It is for the jury to determine whom they will believe in such case. PARTNERSHIP-LIABILITY OF SECRET PARTNER NOT INCLUDED IN WRITEN ARTICLES-INSTRUCTIONS.-In an action against a partnership, involving the liability of one who denies belonging to the partnership, and who was not included as a partner in the written articles of part

nership, it is proper to instruct the jury that as to third parties written agreements of copartnership are not conclusive evidence as to the question of partnership; that there may be secret agreements of partnership outside of written papers; and that the jury may consider evidence tending to show that the person whose liability is questioned furnished all the money for the firm business, and that the ostensible partnership was not bona fide, but was a mere devise to protect such person from loss while sharing in the profits, in connection with the question whether such person was in fact a partner, and that such person, if a partner, whether secret or disclosed, comes under the firm's liability.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.

The instructions excepted to by defendant, and referred to in the opinion of the court, were as follows: "As to third parties, written agreements of copartnership are not conclusive evidence as to the question who were members of the copartnership. There may be secret agreements of copartnership outside of written papers; and if the jury should believe from the evidence that Mrs. Bornheimer furnished all the money for the transaction of the business of the firm, that neither of the ostensible partners had any means, that the ostensible partnership was not bona fide, but was a mere device to protect Mrs. Bornheimer from loss in case the business proved unprofitable, and permitting her to share in the profits, such facts, if proven, are proper for the jury to consider in connection with the question whether or not Mrs. Bornheimer was in fact a partner. If she was a partner, whether secret or disclosed, then if the partnership is liable, she comes under the firm's liability."

George E. Lawrence, for Appellant.

The instructions excepted to were erroneous. There can be no partner outside of the partnership agreement. Unless there is proof of a partnership agreement, there is no proof of partnership. (Civ Code, sec. 2395; Quackenbush v. Sawyer, 54 Cal. 440; Noblit v. Bonaffon, 81 Pa.