I agree with Justice McComb that the judgment should be reversed but I prefer to place the reversal on another ground.
Regardless of whether an agreement employing a real estate broker, for a commission, to secure an option to purchase real property does or does not come within the provisions *72of subdivision 5 of section 1624 of the Civil Code (and Code Civ. Proc., § 1973, subd. 5), I am of the view that plaintiff is entitled to a hearing on the merits of his claim.
The amended complaint alleges, and the offer of proof comprehends a showing, that: (1) Nelson, the negotiating salesman, was, throughout most of the period he was rendering the service to defendant, an employe of plaintiff broker; (2) defendant was aware of the above stated relationship, and its dealings with salesman Nelson, under the circumstances, appear to be dealings with Nelson’s employer, the broker-plaintiff; (3) defendant, through its authorized employe Stratton, wrote Nelson, “I think everything is in order for the acquisition of the property and as soon as the escrow is closed will get in touch with you so that the commission factor can be disposed of. Believe I told you we would pay 50% [sic] commission through Fortune with the understanding that you would receive half.”
The above quoted writing, which is subscribed by Stratton with his signature over the designation of his office with defendant, “Industrial Commissioner,” appears on its face to constitute “some note or memorandum” of employment and of obligation to pay a commission. Perhaps “Fortune,” as well as plaintiff and Nelson, should be parties to the litigation with defendant, but defendant, having acknowledged the employment of an “agent or broker” and an obligation to pay a commission for Nelson’s services as a real estate agent rendered during a time when he was employed by the plaintiff broker, is not in my view entitled to judgment on demurrer. A writing made subsequent to partial execution of the agreement meets the statute of frauds. (See Walsh v. Standart (1917), 174 Cal. 807, 810 [164 P. 795] ; 23 Cal.Jur.2d 365-366, and cases there cited.)
In this connection it is further to be noted that Nelson on July 24, 1950, advised defendant that “Be my new connection, I will be in charge of the Industrial Department of Pacific Southwest Development Corporation . . . Have written my superior, Mr. Gregory M. Creutz, who is President . . . about our development deal here in San Jose. Haven’t had a chance to discuss it with him personally yet but believe we will be interested.” In response to the above mentioned letter defendant’s representative addressed his letter as follows, “Mr. Cliff A. Nelson, Manager Industrial Department, Pacific Southwest Development Corp., ” and stated therein that “I am in a position to take an option on the Lenfest property *73at $3,000.00 per aere. We would not wish to pay more than $1,500.00 for the option ...” Thereafter, under date of September 8, 1950, Mr. Nelson on the letterhead of “Pacific Southwest Development Corporation” wrote to defendant’s representative that “In keeping with our conversation of Wednesday it is our understanding that the five per cent commission on the final sale price of the properties mentioned . . . would be paid to us by Western Pacific Railroad and we would not look to Lenfest or Cappelloni for any commissions. We prefer this since we are going to represent you rather than the sellers. ... As mentioned, Pacific Southwest Development Corporation will take care of an equitable payment that may appear to be due to Fortune Realty for their work up to the date of my coming with this corporation and transferring my salesman’s license down here from Fortune Realty Co.”
In the light of the circumstances shown I am of the view that a question of mixed law and fact arises. Is it not permissible to construe defendant’s admission of employment of a broker or agent, and admission of liability for a commission, as running in favor of plaintiff? It seems to me that we should not hold on demurrer (to the evidence as well as the pleading) that a construction in favor of plaintiff could not be supported.
For the reasons above stated I would reverse the judgment.