
    (134 So. 388)
    TUCKER v. ROGERS.
    No. 28255.
    March 30, 1931.
    Rehearing Denied April 27, 1931.
    John E. Jackson and Baldwin J. Allen, both of New Orleans, for appellant.
    Milner & Porteous and P. M. Milner, all of New Orleans, for appellee.
   ST. PAUL, J.

Defendant authorized one S. J. Derbes, a real estate broker, to sell for his account ten certain lots of ground for a net price of $4,-500 and retain all above that amount for his commission.

Derbes approached plaintiff, another real estate broker, and arranged to sell him the lots for $4,750. It was agreed, however, that plaintiff and Derbes were to split the commission of $250. '

Thereupon plaintiff addresses to himself as “Selling Agent” an offer to purchase the property, signed by himself as “Agent for client, Buyer”; which offer he, “Selling Agent,” submitted to Derbes, as “Listing Agent,” and was accepted by defendant as “Owner.”

When defendant learned that plaintiff was not purchasing for “a client,” but for himself, defendant repudiated the contract and sold the property to another person. Whereupon plaintiff sued defendant for damages equal to the price at which defendant had promised to sell and that at which plaintiff could have sold.

The trial judge rejected plaintiff’s demand, and plaintiff appeals.

We think the judgment appealed from is correct. The promise of sale never was completed. The offer of sale was to all intents and purposes made to Derbes as “Listing Agent,” and offered to place in his hands one-tenth of the purchase price, or $475. When plaintiff withheld out of this deposit, as he did, one-half the commission (or $125), he deposited with Derbes only $350, or less than the 10 per cent, of the purchase price. Hence the contract was not completed. State ex rel. Bond v. Register of Conveyances, 162 La. 362, 110 So. 559. '

Decree.

The judgment appealed from is therefore affirmed.

O’NIELL, O. J., dissents.  