This suit is for a commission and attorney’s fees on a brokerage contract for the sale of property of defendant, the plaintiff being a real estate broker. The only defense now relied on is that the contract was revoked by letter; and the plaintiff replies that the contract being for a term could not be revoked, and that the letter was not received, and further, that the postage is not shown to have been prepaid on the letter in. question, if any such letter *299was ever mailed; and that therefore no presumption can exist of the letter having been received.
[1, 2] The lady clerk in defendant’s office testifies to the letter having been mailed, properly addressed; but, as she says nothing of the postage having been prepaid, no presumption arises of the letter having been received. 22 C. J. 99; 22 A. & E. Eng. of L. 1255. Moreover plaintiff testifies that he opens his mail himself, and that the letter was not received.
“Authority to sell land is not revoked by a letter mailed to the brokers, but never received by them.” 9 O. J. 520, note 9, (b). (1).
The judgment of the district court and that of the Court of Appeal, which rejected plaintiff’s demand, are therefore set aside, and it is now ordered, adjudged, and decreed that plaintiff, Rozell McWilliams, have judgment against the defendant, Frank Reith, Jr., in the sum of $191.70, plus 25 per cent, of this amount in addition as attorney’s fees, with legal interest thereon from March 4, 1921, and that defendant pay the costs of this suit
O’NIELL, J., dissents.On Application for Rehearing.
PER CURIAM.The decree herein is amended, so as to allow interest from judicial demand, and the application for a rehearing is denied. <