188 P. 1019 | Cal. Ct. App. | 1920
This is an appeal by the plaintiff from a judgment against him upon a motion for nonsuit. *173 The action was for $8,457, alleged to be due plaintiff as commission for selling land of the defendant. Defendant answered, admitting a verbal contract with the plaintiff, but asserting that such contract was conditioned upon the full performance by the purchaser of his contract to purchase the land, and that the purchaser produced had performed none of the conditions of his contract; and further alleged that no written contract was ever entered into between the plaintiff and defendant, or between the plaintiff and anyone authorized to act for the defendant. The plaintiff submitted his case upon his own testimony solely, and introduced in evidence a document reading as follows:
"San Francisco, Cal. "April 12, 1917.
"This is to certify that H. W. Butler is entitled to five per cent commission on sale made by him of what is known as the Barnhart Tract, estimated to be 5,638 acres, at $30 an acre.
"Payment of this commission to be arranged between Mr. H. W. Butler and Mr. E. A. Bunker, president of the Solano Land Company.
"SOLANO LAND COMPANY, "E. A. BUNKER, President."
As the plaintiff must recover, if at all, upon a written contract (Civ. Code, sec.
[4] There remains for our consideration the remaining question of whether sufficient facts appear to raise an estoppel against the corporation upon a motion for nonsuit. The defendant did not present its case, and we have before us, upon the consideration of this motion, as before stated, merely the pleadings and testimony of the plaintiff, together with the writing signed by Mr. Bunker which appears herein. But it does appear by the pleadings, and it is not denied, that the corporation did accept the purchaser produced by the plaintiff and entered into a contract with him for the purchase and sale of the real estate in question. The contract entered into between said purchaser and the corporation is set out as an exhibit to the complaint. This contract is signed by the president and secretary of the corporation on its behalf, and the corporate seal is affixed. It appears, therefore, that the corporation took the fruits of *175
the work of the plaintiff. It accepted the benefit of the contract made by its president, purporting to be made on behalf of the corporation, and it is now estopped to deny his authority to execute the contract. Of course, the evidence of the defendant is not before us, and perhaps it may be able to prove that the contract between the plaintiff and the defendant, in accordance with which the purchaser was accepted, was a different one than that to which plaintiff has testified, and that its terms were as alleged in the answer. But before us now we have no such proof, and upon consideration of the motion for a nonsuit, with all presumptions in favor of the plaintiff, and upon the record before us, there appears to be sufficient evidence of estoppel to put the defendant to his proof. Indeed, in one of the cases cited to us by the respondent (Northwestern Packing Co. v. Whitney,
The judgment is reversed, with instructions to the trial court to reopen the case and allow the defendant to put in its defense.
Brittain, J., and Nourse, J., concurred.