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substance thereof which we think sustains the finding referred to. It must suffice for us to say that we have carefully examined the testimony and therefrom have been convinced that the court was amply justified in making said finding.

There are no other points requiring special notice.
The judgment is affirmed.

Chipman, P. J., and Ellison, J., pro tem., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 12, 1916.

[Civ. No. 1826. First Appellate District.–August 15, 1916.] GEORGE SELLERS, Appellant, v. SOLWAY LAND COM

PANY (a Corporation), et al., Defendants; BALFOUR, GUTHRIE & CO. (a Copartnership), et al., Respondents.


STATUTE OF FRAUDS SECTION 1624, SUBDIVISION 6, CIVIL CODE. — The provision of subdivision 6 of section 1624 of the Civil Code was only designed to protect owners of real estate against unfounded claims of brokers, and does not extend to agreements between

brokers to co-operate in making sales for a share of the commissions. ID. - CONTRACT BETWEEN REAL ESTATE BROKERS AGREEMENT TO PAY

SPECIFIC COMPENSATION—AUTHORITY TO EXECUTE CONTRACT—WRITING ESSENTIAL.-A contract made by the manager of the land and loan department of a real estate partnership agreeing to pay a second broker a specific amount of money for the procuring of a purchaser for land for the sale of which the copartnership were the agents, is void, where the authority of the person signing the con

tract on behalf of the partnership is not in writing. ID.-ACTION ON CONTRACT — PLEA OF STATUTE OF FRAUDS KNOWLEDGE

OF RENDITION OF SERVICES-LACK OF ESTOPPEL.-In an action to recover upon such a contract the copartnership is not estopped from setting up the statute of frauds, by reason of the fact that it knowingly held the signer of the contract out to the world as having the authority he assumed, and of its knowledge that such employee was dealing with the plaintiff, and had performed services under the

invalid contract, where it also appears that the sale was made with. out knowledge that the plaintiff was interested other than by a verbal notification made some time previously that he was endeavoring to sell the land to the purchasers.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. A. E. Graupner, Judge.

The facts are stated in the opinion of the court.

J. E. Rodgers, A. F. Bray, and Sterling Carr, for Appellant.

McCutchen, Olney & Willard, and J. M. Mannon, Jr., for Respondents.

LENNON, P. J.-In this action the plaintiff sued the defendants for the sum of $6,250, alleged to be due as a commission upon the sale of a large ranch in Contra Costa County, the complaint alleging that said sale was made through the efforts of the plaintiff under the contract hereafter set out. The land was the property of the defendant Solway Land Company, and was being managed and handled by the defendants Balfour, Guthrie & Co., a copartnership, consisting of a number of individuals, some of whom are named as defendants, and upon the sale referred to the copartnership received a commission of two and one half per cent upon its sale price of one hundred and thirty thousand dollars, to wit, the sum of $3,250, as compensation for the care of the ranch during a certain period and for its sale. The agency of the defendants, Balfour, Guthrie & Co., was, however, unknown to the plaintiff, and the complaint charges them as owners. At the conclusion of the evidence a motion of defendant Solway Land Company to dismiss as to it was granted, and no question is raised as to the correctness of the court's action in this regard. Hereafter in this opinion the term “defendants” will refer only to Balfour, Guthrie & Co.

The negotiations between the plaintiff and the defendants for his contract were conducted by him with one R. F. McLeod, an employee of the defendants and the manager of a department of their business known as the land and loan

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department. The contract was signed by McLeod on behalf of the defendants and is in the following terms:

"San Francisco, 22nd Sept., 1909. "Mr. Geo. Sellers,

“Oakley, Cal. Dear Sir:

"Replying to your letter of 21st inst., the price we are asking for the Solway ranch is $125,000, including stock and implements and interest in the pumping plant. We would be willing to accept one-half cash and carry the balance at. 6% net for a reasonable time. We will pay 5% commission on the above price to the party effecting a sale.

“You are no doubt aware that part of the ranch is rented to Japanese for potatoes, etc., and possession of same cannot be given until expiry of the lease this fall.

“Yours truly,

Per (Signed) R. F. MCLEOD. "P. S.-There is about 1700 acres altogether.”

(It may be said parenthetically that at the time of the sale the price of the property had been increased.)

It is an established fact in the case, and not disputed, that the authority from the defendants to McLeod to enter into this contract was not conferred in writing. The action having been dismissed as to the defendant Solway Land Company, the remaining defendants at the conclusion of the trial moved that the jury be directed to return a verdict in their favor, upon the ground of the lack of written authority to McLeod, section 2309 of the Civil Code requiring that an authorization to an agent to enter into a contract required to be in writing must itself be evidenced by a written instrument. This motion was also granted, and the jury thereupon returned its verdict in favor of the defendants. From the judgment entered thereon the plaintiff takes this appeal.

In support of his appeal plaintiff urges that the court erred in directing the jury to find in defendants' favor for two principal reasons, viz., first, that the plaintiff's contract being one between broker and broker, is not governed by section 1624, subdivision 6, of the Civil Code, and that therefore McLeod's authority to enter into it was not required to be in writing; and, second, even if the contract sued upon

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be one that is governed by said section, the conduct of the defendants in reference thereto estops them from availing themselves of the bar of the statute.

The authorities in this state holding that an oral contract between brokers whereby one employs or secures the cooperation of another to sell real estate is valid and enforceable, may be roughly divided into three classes. The first class comprises cases where the brokers' agreement was purely and simply one of partnership, such as Coward v. Clanton, 79 Cal. 23, [21 Pac. 359), Gorham v. Heiman, 90 Cal. 346, [27 Pac. 289], Bates v. Babcock, 95 Cal. 479, [29 Am. St. Rep. 133, 16 L. R. A. 745, 30 Pac. 605), and Baker v. Thompson, 14 Cal. App. 175, [111 Pac. 373]; the second comprises cases where the agreement of the brokers was to divide between them, either equally or in a stated proportion, a commission or compensation to be received by one of them from the owner of the land to be sold, such as Casey v. Richards, 10 Cal. App. 57, [101 Pac. 36), Hageman v. O'Brien, 24 Cal. App. 270, [141 Pac. 33], Reynolds v. Jackson, 25 Cal. App. 490, [144 Pac. 305), Hellings v. Wright, 29 Cal. App. 649, [156 Pac. 365), Jenkins v. Locke-Paddon Co., 30 Cal. App. 52, (157 Pac. 537); and the third class consists of cases, two in number, in which one broker, having a contract from the owner to sell real property, has agreed with a second broker to pay him for his services either in procuring a buyer for the property or assisting in that end—those cases being Saunders v. Yoakum, 12 Cal. App. 543, (107 Pac. 1007), and Johnston v. Porter, 21 Cal. App. 97, [131 Pac. 69).

In the case at bar the contract, as we have seen, is one to pay a specific amount, viz., five per cent on the purchase price, for the procuring of a purchaser, and would fall within the last-named classification and be governed by the authority of those cases, unless it contains elements differentiating it from them and making inapplicable the rule therein followed.

The leading case in this state upon the question is Gorham v. Heiman, 90 Cal. 358, (27 Pac. 289], and which has been cited in practically every decision upon the subject which has since been rendered. The agreement there was between brokers to co-operate in the selling of a mine and to divide commissions, and the court referring thereto used this lan

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guage: “Counsel seem to rely on section 1624 of the Civil Code, subdivision 6. But clearly that provision was only designed to protect owners of real estate against unfounded claims of brokers. It does not extend to agreements between brokers to co-operate in making sales for a share of the commissions.” It will be seen upon examination that all the cases in the first and second classification made above dealt with agreements between brokers to co-operate in the common object of procuring a purchaser for real property, and come squarely within the authority of Gorham v. Heiman.

With regard to the remaining two cases, it appears that in Saunders v. Yoakum, supra, “defendant agreed with plaintiff that if he would procure a purchaser for any or all of the property, he would pay to the plaintiff a commission in the event of a sale." Plaintiff performed his agreement, and the defendant received a commission of one thousand two hundred dollars, and refused to pay plaintiff for his services. The latter thereupon brought suit, and recovered four hundred dollars as the value thereof. Upon appeal the contention of the defendant that the contract was void because not in writing was overruled upon the authority of the leading case above cited, the court construing the agreement to be one between brokers to co-operate in making a sale for a share of the commission, and referring to the services of the plaintiff as being rendered "in assisting the defendant to earn his commission."

In the second case-Johnston v. Porter et al.--it appears that Johnston, the plaintiff, introduced the purchaser of the property to the defendant Morey, who was acting as the agent of the owner, and also assisted in conducting the negotiations which resulted in a sale. Morey orally agreed to compensate Johnston for his services. Upon the conclusion of the sale Morey received a commission of $2,250, out of which he offered to pay Johnston $250. Johnston being dissatisfied with the amount tendered by Morey, brought suit upon the oral agreement for the reasonable value of his services. The court allowed a recovery of one thousand five hundred dollars out of $2,250 received by Morey. Upon appeal the judgment was sustained, this court construing the agreement between Morey and Johnston as being one between two brokers to co-operate in the sale of real estate, using this language: “Subdivision 6 of section 1624 of the

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