18 Cal. App. 2d 371 | Cal. Ct. App. | 1937
In this action the plaintiff sued to recover a judgment against the three defendants for services alleged to have been rendered. The trial court made findings in favor of the plaintiff against all three defendants and from the judgment entered thereon all of the defendants have appealed.
Formerly Harry Sears was the owner of the Victor mine located in Calaveras County. He conveyed to the Calaveras Central Mining Corporation, hereinafter called the lessor. The latter executed a lease on June 4, 1930, to the Calaveras Central Operating Corporation, hereinafter called the lessee. The latter changed its name to Calaveras Central Gold Mining Corporation. The lease was made for a term of ninety-nine years. Among others, it contained a covenant that the lessee would operate the mine, extract the valuable ores, sell the same and pay 10 per cent of the proceeds to the lessor weekly. The lessee was incorporated with a capital stock of $1,000,000 divided into shares of one dollar each and on May 2, 1931, it had in its treasury of unsold stock 400,000 shares. On that date the lessee executed and delivered to George L. Broy, the plaintiff, a contract to buy and sell the said 400,000 shares for $230,000. Said contract was expressly made conditional depending on a permit being granted by the corporation commissioner. No other party joined in that agreement. The commissioner issued a permit authorizing the sale of 200,000 shares and refused a permit to issue the remaining 200,000 shares. The said contract did not on its face contain any provision as to the payment of commissions. The permit did not expressly contain any such provisions but, on the contrary, it contained a clause that the sales prices named in said contract should be net to the
The defendant Sears asserts that the plaintiff rendered no services for him. The plaintiff replies that he did. In that connection he quotes evidence showing that he held his conversations and had communications with the defendant Sears. That is true, but it is also true from the very beginning the plaintiff was informed the defendant Sears was acting as the agent of the lessee and that the latter was the party in interest and the defendant Sears committed no act which would render him personally liable. (Civ. Code, sec. 2343.)
The lessor asserts that the plaintiff rendered no services for it. The plaintiff replies that when the negotiations' commenced, that corporation was the sole party in interest and Mr. Sears was its duly authorized agent. Be that as it may, it was seen at once that nothing could be done to an advantage in attempting to finance it. A new corporation had been formed, a lease had been made to it, and said lessee, the Calaveras Central Gold Mining Co., Ltd., was financed. But, the plaintiff contends the lessee was organized as the agent of the lessor and therefore the lessor is liable. (Kelly v. Ning Yung Ben. Assn., 2 Cal. App. 460 [84 Pac. 321].) The case cited differs from the case in hand in many material respects. The lessee corporation was not owned by the lessor, but was an entirely separate entity. Each had a different set of stockholders. The lessor reserved a rental of 10 per cent of the moneys received from the sale of minerals extracted by the lessee; otherwise, it retained no interest or control during the term of the lease. Fraud was not intimated. It follows the corporate entity of each may not be ignored. (Minifie v. Rowley, 187 Cal. 481, 487 [202 Pac. 673].)
Finally, the lessee contends that under the evidence the plaintiff performed no services for it, and, under the facts, the transaction between them was solely one of entering into a contract to buy and sell. The plaintiff asserts that said contention is not sustained by the proof. The point involves the following facts: Early in 1931 Mr. Sears
When the memorandum dated April 9, 1931, was executed Mr. Broy and Mr. Sears agreed it would do until a formal contract was executed and Mr. Broy testified that it was executed in response to his suggestion that he could get others interested in a stock issue. Later the formal contract of May 2, 1931, was executed, it was with reference to a stock issue, and, under settled rules of law it superseded the informal written memorandum dated April 9, 1931. (Spinney v. Downing, 108 Cal. 666, 668 [41 Pac. 797].) Under the uncontroverted facts another rule is applicable.
The defendants make a further objection to any relief being granted to the plaintiff for services rendered to them or any of them. For some time prior to April 9, 1931, the plaintiff was a broker acting as an independent operator. But he had a standing agreement with Serbs, Coplin & Co. under which the latter agreed to pay him a commission of 10 per cent on sales of stock made by Serbs, Coplin & Co. on business procured by this plaintiff. Said agreement was in full force when on April 9, 1931, the plaintiff demanded from Mr. Sears the said contract. However, the fact that the plaintiff held such an agreement with Serbs, Coplin & Co. was not disclosed to Mr. Sears. The defendants contend that under such circumstances as recited above the plaintiff’s purported contract will not be enforced by the courts. (Glenn v. Rice, 174 Cal. 269, 272 [162 Pac. 1020].) The plaintiff does not question the doctrine of that case but he admits he had bargained for compensation from both buyer and seller, claims he had the right to do so, and cites and relies on Shaffer v. Beinhorn, 190 Cal. 569 [213 Pac. 960], That ease did not involve a secret profit. It did not purport to discuss the subject. It did involve a contract “to introduce” a prospective buyer to one holding an executory contract to sell. The facts in the case at bar are quite different. Serbs, Coplin & Co. were stockbrokers. Mr. Broy was a stockbroker and employed by that company. The defendants were seeking finances. Mr. Broy undertook to obtain from the lessee a contract to sell to Serlis, Coplin & Co.,, his prin
In what has been said we have not overlooked the contention of the plaintiff that the instrument dated April 9, 1931, was the sole embodiment of his contract and that the formal contract dated May 2, 1931, was not his contract but was the contract of Serlis, Coplin & Co. and the plaintiff was only a dummy. But, under the facts of the case at bar we think the plaintiff’s contention may not be sustained. Over the objection of the defendants much evidence was introduced tending to support the plaintiff in the position he took. The trial court accepted that evidence and made findings in favor of the plaintiff thereon. The defendants vigorously attack each of those findings. Said findings are very long and it will serve no purpose to insert them in this
From what has been said it will be seen that many findings were made under a misconception of the law. No material issue of fact is involved. It follows that the judgment should be reversed, that the findings should be reframed not inconsistent with what we have said, and that a judgment in favor of all of the defendants should be entered thereon. It is so ordered.
Nourse, P. J., and Spence, J., concurred.
. A petition for a rehearing of this cause was denied by the District Court of Appeal on February 5, 1937, and an application by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on February 25, 1937.