In an action for commissions on a contract by which plaintiff was employed to sell lots at private sale or public auction, "collect all first moneys," and do certain other things, the question was whether plaintiff was entitled to commissions on defaulting contracts of sale, and the case was submitted on an agreed statement reciting the amount of commissions accruing "on defaulted contracts of sale with purchasers at the auction sale * * * and no part of which has been or will be received," and that plaintiff claims right to the commissions, "regardless of subsequent defaults of contracting parties." Held, that there was nothing to show that as to sales in which default was made, there was any "first money" to be paid, in the absence of provision for which the auction sale was, under the Civil Code, Sees. 1793, 1798, complete when the auctioneer announced the lots were sold, and entered minutes of the sale in his sale-book, and nothing to show that if there was provision for "first money," it was not collected by plaintiff, the recited failure of receipts being capable of being referred solely to subsequent default payments, and that no presumption as to the existence of such a provision, or as to the failure of plaintiff to collect "first money," if there was a provision therefor, could be made, so as to defeat plaintiff's right of recovery in the absence thereof; the contract not making it a guarantor of payments of the purchase price on sales made by it. Benedict v. Wilson (Cal. App. '09), 103 P. 350. Compare 458.