Where a real estate agent has a written contract with the owner of land to put it upon the market, advertise and sell the same, having for his interest only a share in the surplus profits arising from the proceeds of the sale of the land, it is a contract of agency and not of partnership. Durkee v. Gunn, 41 Kan. 496, 21 P. 637; Hicks v.' Post, 154 Cal. 22, 96 P. 878. Compare Seattle Land Co. v. Day, 2 Wash. 451, 27 P. 74.