Brown v. Pforr

38 Cal. 550 | Cal. | 1869

Sanderson, J., delivered the opinion of the Court:

The plaintiffs are brokers, and sue upon a contract with the defendant, by which he agreed to pay them the sum of 1750, if they would" find, within one month from the date of the contract, a purchaser for a certain parcel of real estate belonging to him, willing and able to buy, at the price of $65,000, and allege performance, which they proved at the trial. The defendant admits the contract, as alleged, but avers that he revoked the agency of the plaintiffs before they had found a purchaser, and proved it at the trial. The Court instructed the jury to the effect that, in view of the fact that the plaintiffs were allowed by the terms of the contract a specific time within which to find a purchaser, the defendant" could not revoke without the consent of the plaintiffs. Under this instruction the jury found for the plaintiffs, and the defendant has brought the case here.

It is a general rule that any agency, whether to sell land, or to do any other act, unless coupled with an interest, or given for a valuable consideration, is revocable at any time. This general principle is not disputed by counsel for the plaintiffs, but it is insisted that this case is taken without its operation by the peculiar terms of the contract, by which, as is claimed, the defendant has impliedly, if not expressly, restricted his power of revocation, and made the contract continuous for a month. This seems to have been the construction put upon the contract by the Court below, but we do not so understand it. ' Its terms, as stated in the complaint, are, that the defendant employed the plaintiffs to find a purchaser for the real estate described in the complaint, ‘1 and promised and agreed to and with the plaintiffs, in consideration that the plaintiffs would undertake to seek, and should, within a month from that date, succeed in- finding a person Avho should be willing and able, and who would agree to purchase the said property at and for the sum of $65,000 in gold coin, he would pay them for such service the sum of $750 in gold coin.” Counsel find the alleged restriction" upon the defendant’s power of revocation in the Avords by which the time within which the plaintiffs are required to perform is limited to one month from the date of the contract ; but, as it seems to ns, the restriction is upon the power of plaintiffs, and not upon that of the defendant. It seems obvious to us that the restriction was intended for the benefit of the defendant, and not the plaintiffs. The force of the limitation is, that the defendant will' pay them the stipulated price for the service if they completely perform it within one month; otherwise he will pay them nothing. There is. nothing directly or impliedly affecting the question of revocation; and, indeed, we are unable to perceive how, under any circumstances, a mere limit as to the time allowed for the performance of a contract of agéncy to sell land, can be construed into an agreement on the part of the principal not to revoke the power.

The rule that in this class of contracts the principal may revoke at any time before complete performance by the broker, unless he has expressly otherwise agreed, may be a harsh rale, as suggested by counsel; but if it is, it would seem to be a very easy matter for the broker to protect himself against it. At all events, if he does not insert a covenant to that effect in his contract, the Courts cannot do it for him.

Judgment and order reversed, and a new trial granted.