While the authorities are in conflict (see cases listed in notes 10 A.L.R. 816 and 20 A.L.R. 1270) we think the better rule precludes the owner from selling the property within the contract period where an "exclusive right," as distinguished from an "exclusive agency," has been conferred upon another person. An "exclusive agency" means that the owner will not sell through any other agency: Miller v. Woodward, 234 Ky. 631 ( 28 S.W.2d 961); Snook v. Page, 29 Cal.App. 246 ( 155 P. 107); Hall v. King, 100 Cal.App. 70 ( 279 P. 814); Schultz v. Griffin, 5 Misc. Rep. 499 ( 26 N.Y.S. 713); Gaillard Realty Company v. Rogers Wire Works, 215 App. Div. 326 ( 213 N.Y.S. 616); Donahue v. Reiner Co., 46 R.I. 302 ( 127 A. 359); French v. Love, (Tex.Civ.App.) 281 S.W. 301; Harvey v. Sehrt, 12 La. App. 583 ( 126 So. 568); Harris v. McPherson, 97 Conn. 164 ( 115 A. 723, 24 A.L.R. 1530). The real controversy in this case is as to the time when the house in question was completed.

An examination of the following authorities fully convinces us that the name `W.S. Wetenhall Company' is not fictitious. ( Spreckels v. Grace Darling Hospital Assn., 28 Cal.App. 646, 648 [ 153 P. 718]; Pendleton v. Cline, 85 Cal. 142 [24 P. 659]; Carlock v. Cagnacci, 88 Cal. 600, 601 [26 P. 597]; McLean v. Crow, 88 Cal. 644, 647 [26 P. 596]; Lamberson v. Bashore, 167 Cal. 387, 391 [ 139 P. 817]; Andrews v. Glick, 205 Cal. 699 [ 272 P. 587]; Hall et al. v. King, 100 Cal.App. 70 [ 279 P. 814].) "If the name `W.S. Wetenhall Company' is not fictitious then [plaintiff] does not come within the purview of section 2466 at all for the reason that he is an individual doing business under the name and style of `W.S. Wetenhall Company' and is not a partnership.

A finding adverse to the broker on such an issue, of course, eliminates from consideration the many cases in which performance has been prevented by the wrongful act of the principal, as well as those cases in which recovery was allowed because a sale was made to a client of the broker. ( Falkenberg v. Giacomazzi, 53 Cal.App. 449, 451 [ 200 P. 372]; Hall v. King, 100 Cal.App. 70, 74 [ 279 P. 814].) Carlsen v. Zane, 261 Cal.App.2d 399 [ 67 Cal.Rptr. 747], decided April 19, 1968, may be such a case.

It is grounded on the theory of money debt due on a contract fully performed by plaintiff. [14] It is established that when a contract has been fully performed and nothing remains to be done under it except the payment of money by defendant, plaintiff may declare generally in indebitatus assumpsit. ( Castagnino v. Balletta, 82 Cal. 250, 258 [23 P. 127]; Sessions v. Pacific Improvement Co., 57 Cal.App. 1, 25 [ 206 P. 653]; Locke v. Duchesnay, 84 Cal.App. 448, 455 [ 258 P. 418]; Hall v. King, 100 Cal.App. 70, 73 [ 279 P. 814]; Abbot v. Limited Mut. Comp. Ins. Co., 30 Cal.App.2d 157, 165 [ 85 P.2d 961].) [15] Such count may be joined with one on the contract, and a plaintiff is under no compulsion to elect but may submit his case to the trier of fact for determination upon the facts, and it is the province of the trier of fact to decide which count is supported by the evidence.

[3] On the other hand if the agency established gives the agent the "exclusive right of sale" generally the principal is liable for the agent's commission whether or not the agent's services contributed to such sale, since under the terms of such a contract the agent is the only person entitled to sell the property. (See Golden Gate Packing Co. v. Farmers' Union, 55 Cal. 606; Chamberlin v. Gallucci, 110 Cal.App. 71 [ 293 P. 642]; Hall v. King, 100 Cal.App. 70 [ 279 P. 814]; Faith v. Meisetschlager, 45 Cal.App. 7 [ 187 P. 61]; 1 Cal.Jur. 812, § 96; 4 Cal.Jur. 607, § 40.) The distinction is clearly set forth in Wilck v. Herbert, 78 Cal.App.2d 392, where the court at page 413 [ 178 P.2d 25] said:

Spreckels v. Grace Darling Hospital Ass’n., 28 Cal.App. 646, 648, 153 P. 718; Pendleton v. Cline, 85 Cal. 142, 24 P. 659; Carlock v. Cagnacci, 88 Cal. 600, 601, 26 P. 597; McLean v. Crow, 88 Cal. 644, 647, 26 P. 596; Lamberson v. Bashore, 167 Cal. 387, 391, 139 P. 817; Andrews v. Glick (Cal.Sup.) 272 P. 587; Hall et al. v. King (Cal.App.) 279 P. 814. If the name "W.S. Wetenhall Company" is not fictitious, then he does not come within the purview of section 2466 at all, for the reason that he is an individual doing business under the name and style of "W.S. Wetenhall Company," and is not a partnership.