in the same office toward the same end, and who, believing they understood each other, dealt in open-handed fashion, with little thought of niceties in the use of moods and tenses.

[4] ID. PROCURING CAUSE OF SALE-PROTECTION OF BROKER.-Where there is justification for treating the broker as the procuring cause of sale, his services are regarded as highly meritorious, and the law leans to that construction of the contract and to that interpretation of the facts of the case and the acts of the parties which will best secure to the broker the payment of his commissions.

[5] ID.

WHEN PROCURING CAUSE OF SALE. To constitute himself the predominating effective cause of a sale, it is not enough that the broker contributes indirectly or incidentally to the sale by imparting information which tends to arouse interest, but he must set in motion a chain of events, which, without break in their continuity, cause the buyer and seller to come to terms as the proximate result of his peculiar activities.

[6] ID. COMPLETION OF SALE BY ANOTHER EFFECT UPON COMMISSION.-A broker who is the primary procuring cause of a sale will not be deprived of his commission because the negotiations were completed through someone else, even perhaps without the broker having himself met or communicated personally with the buyer.

--

[7] ID.-PROCURING CAUSE OF SALE-QUESTION OF FACT - - APPEAL.Whether or not a sale is primarily the result of the broker's efforts is a question of fact, and the determination of the triers of such fact will not be disturbed on appeal. [8] ID.-SALE OF SITE FOR SHIPBUILDING YARD

BROKER PROCURING CAUSE OF SALE.-Where a broker, acting under his contract of employment, carried on extended negotiations with a shipbuilding corporation for the sale of a site for a shipbuilding yard, and the land was ultimately purchased at the same price and on the same terms as those named by the broker to the shipbuilding corporation with money furnished by the United States Shipping Board Emergency Fleet Corporation to enable the shipbuilding corporation to take the active management and to build ships under orders in the Fleet Corporation's yard, the shipbuilding corporation and the Fleet Corporation were coadventurers in the purchase, and the broker was the procuring cause of the sale, notwithstanding the sale was consummated by the parties them

selves.

[9] ID. TERMINATION OF AGENCY CONTRACT - SUBSEQUENT COMPLETION OF SALE-RIGHT TO COMMISSION.-Allowance of compensation to a broker who was the procuring cause of a sale is not precluded by reason of the fact that the sale was completed more than thirty days after the owner's notice terminating the broker's

contract, notwithstanding the contract provided for termination on such notice, where the notice expressed a willingness to pay the broker a commission on all sales which originated with him or for which in the judgment of the directors of the owner he was responsible.

[10] CORPORATIONS-BROKERAGE CONTRACT SIGNATURE BY MANAGER— ABSENCE OF AUTHORIZATION EFFECT OF.-A brokerage contract signed by the acting general manager of a corporation is binding on the corporation, notwithstanding the absence of an express written authorization. [11] BROKER'S COMMISSION PREVENTION OF PERFORMANCE SUIT IN ASSUMPSIT-RIGHT OF BROKER.-A state of facts showing prevention of performance of a contract justifies an action in assumpsit, and while a broker's contract cannot be set up to defeat the implied assumpsit, it is admissible in evidence to show how the cause of action arose and to supply a measure of damages. [12] ID.-PREVENTION OF PERFORMANCE-SUBMISSION TO JURY-SUFFICIENCY OF EVIDENCE.-In this action the evidence justified the plaintiff as a precautionary measure in going to the jury on a count based on the theory of prevention of performance.

[13] ID.-ASSUMPSIT-SUM DEMANDED-PLEADING.-In an action in assumpsit by a broker, based on the theory of prevention of performance, it is not essential to aver that the sum demanded is the reasonable value of the services, where the contract provision for compensation is relied upon as the standard of value.

[14] ID.-EVIDENCE-CONTRACT.-In such an action the plaintiff was not required to offer any evidence concerning the amount of damages other than the contract itself on which he was entitled to rely as a standard of value. [15] ID. ACTION IN TWO COUNTS ELECTION. A broker suing an owner for a commission in one count and in assumpsit based on prevention of performance in another count is under no compulsion to elect between the counts, but is entitled to submit his entire case to the jury for determination upon the facts, and it is the jury's province to decide which count is supported by the evidence.

[16] ID. GENERAL VERDICT-EVIDENCE-SUPPORT OF EITHER COUNT.Where a general verdict is rendered in such a case, the verdict and judgment entered thereon must stand if the evidence supports a verdict on either count.

[17] ID.

- ACCEPTANCE OF GOVERNMENT EMPLOYMENT BY BROKER — EFFECT OF. A broker who was the procuring cause of a sale of a site for a shipyard to the government did not forfeit his right to his commission under his contract by accepting employment with the government's engineers, after the government had obtained an option to purchase, where his assistance furthered

rather than dissuaded action and involved no service in conflict with a due regard to the interests of the vendors.

[18] ID.-INSTRUCTIONS

ABSENCE OF ERROR.-The instructions in this case read as a whole gave an exposition of the law which subjected defendants to no prejudice, and placed the case before the jury in a manner which left to the defendants no just ground of complaint.

APPEAL from a judgment of the Superior Court of Alameda County. Dudley Kinsell, Judge. Affirmed.

The facts are stated in the opinion of the court.

M. C. Chapman, James F. Peck and Allan C. Van Fleet for Appellants.

Gorrill & Trowbridge, Cushing & Cushing, C. E. Snook and Everett J. Brown for Respondent.

JOHNSON, J., pro tem.-This is an action for the recovery of $30,000, with interest from September 11, 1918, claimed by plaintiff to be payable to him by reason of the sale of a tract of land comprising 156 acres and forming part of a parcel known as tract 30, situated in the Oakland harbor and belonging to the defendants.

The case was tried before a jury, which rendered a verdict in plaintiff's favor for the full amount of his claim against both defendants. From the judgment thereupon entered the defendants have appealed.

The land in question was conveyed on September 11, 1918, to the United States Shipping Board Emergency Fleet Corporation for the sum of $1,000,000, and plaintiff claims a commission of three per cent.

The property stood of record in the name of the defendant Oakland Water Front Company. That defendant, however, held 434/779 of the land in trust for its codefendant Pacific Improvement Company, and this latter corporation owned about two-fifths of the capital stock of the Oakland Water Front Company.

The tract adjoins another parcel carved out of tract 30, which had previously been sold by the defendants to the Union Iron Works and upon which was located the so-called Alameda plant of the Bethlehem Shipbuilding Corporation,

one of the instrumentalities used by the United States government in providing itself with ships during the war. The purchase made by the Emergency Fleet Corporation was for the purpose of establishing a shipyard to be known as the Liberty Shipyard, for use by the Bethlehem Shipbuilding Corporation, in conjunction with its own plant, with a view to speedy augmentation of the supply of ships then so urgently needed for the transport of troops and stores to the seat of war in Europe.

Acting under a contract which will presently be mentioned, plaintiff had carried on extended negotiations with. representatives of the Bethlehem Shipbuilding Corporation between June, 1917, and April, 1918; and while these negotiations were undeniable links in the chain of causation, yet it is contended by defendants that plaintiff was not the immediate instrument through whom the sale to the Emergency Fleet Corporation was ultimately effected. It is chiefly upon this ground that plaintiff's claim to compensation is resisted by the defendants.

The defendants owned extensive areas of marsh and tide lands along the Oakland estuary which they were desirous of marketing; and in furtherance of that design, they took plaintiff into their employ in 1915, agreeing to pay him a stated monthly salary and a commission of two and one-half per cent of the proceeds derived from sales of land made with his aid.

Plaintiff is a civil engineer by profession, and he came to this service with special knowledge of the property, acquired during a business association of almost a decade with his father, a specialist in such lands, from whom also had been transmitted to plaintiff a storehouse of information and data which enabled him to render, with respect to these lands, a unique service.

The employment of plaintiff on the terms mentioned continued until July 1, 1917, and plaintiff's duties pertained to the work of dredging, reclamation, and development of the properties, combined with endeavors to find purchasers.

The lands were partly submerged and considerable reclamation work had to be done in order to prepare them for sale. For the purpose of giving access to ships and providing other facilities, it was necessary to dredge waterways, deepen

channels, and impound filling material; and of all this work plaintiff had charge.

During plaintiff's original employment and by his aid the Alameda plant of the Bethlehem Shipbuilding Corporation was sold by defendants to the Union Iron Works in March, 1917.

From a time antedating plaintiff's engagement the two defendants have had a common office in the Crocker Building, in San Francisco, and their administrative work has been done by a single staff of clerks. The directorates of the companies, while not identical in membership, have had a majority in common; and throughout the period of plaintiff's service the office management of both companies was in the hands of S. F. B. Morse. Officially he was the general manager of the Pacific Improvement Company and the secretary of the Oakland Water Front Company; and actually, as he himself testified and as the evidence otherwise shows, he was "the man in charge of the business of both companies."

Such was the state of affairs when on June 21, 1917, a new contract of employment was made with plaintiff, evidenced by the following letter written on a letter-sheet of the Pacific Improvement Company:

"Pacific Improvement Company
"Crocker Building, San Francisco.

"Geo. L. Sessions, Esq.,

"401 Crocker Building,

"San Francisco,

"Dear Sir:

"California.

"June 21st, 1917.

"Your present connection with the Pacific Improvement Company, whereby you receive a certain salary, terminates the first of July. After that, you will work on the sale of the Oakland Water Front Company property on a commission basis.

"We will pay you a commission of three percent (3%) on any sale that results through your negotiations, or efforts, or which originates with you, or upon which you are employed.