291 P. 1009 | Cal. Ct. App. | 1920
This is an action to recover upon an oral contract for services in the sale of real estate — certain mining properties owned by the Boss Gold Mining Company, a corporation. Plaintiff recovered judgment for five thousand dollars, and defendant appeals.
Defendant, who was president of the Boss Gold Mining Company, the owner of the property, held and owned a little less than three-eighths of all the stock issued by that corporation. According to the findings of the trial court, defendant entered into an agreement with plaintiff whereby it was agreed that if plaintiff would procure a person or persons to enter into a contract with the Boss Gold *223 Mining Company to purchase its real property for the sum of one hundred and fifty thousand dollars, and such person or persons would make a first payment of fifty thousand dollars on account of the purchase price, defendant would pay plaintiff, in consideration of her services, ten per cent of such purchase price, her services to be paid for as and when payments should be made by such person or persons. The lower court further found that, under and pursuant to the terms of the agreement between plaintiff and defendant, the former did procure a person or persons who entered into a contract with the Boss Gold Mining Company for the purchase of its real property at the price and on the terms aforementioned; that said person or persons paid the Boss Gold Mining Company the sum of fifty thousand dollars as first payment on account of the agreed purchase price; and that thereupon, and under and by virtue of the terms of the agreement between plaintiff and defendant, there became due plaintiff from defendant a sum equal to ten per cent of such first payment, namely, five thousand dollars.
Defendant, in his answer, denied that he ever made any contract with plaintiff to procure a purchaser for the property of his corporation. The only contract with defendant that plaintiff sought to prove at the trial was an oral contract of employment. Defendant objected to the evidence on the ground that the sixth subdivision of section
[1] It is clear to our minds that respondent was not entitled to recover on the oral contract of employment. Section
The theory advanced by respondent to sustain her asserted right to a recovery on defendant's oral agreement employing her to sell real estate owned by the Boss Gold Mining Company is that section
To support her claim that she can recover for her services under the oral agreement because the property was owned, not by appellant, but by the Boss Gold Mining Company, respondent seizes upon that portion of the opinion in Gorham v. Heiman,
[4] Equally without merit is the contention that because appellant owns almost three-eighths of all the stock issued by the Boss Gold Mining Company he necessarily was benefited by the sale, and therefore respondent is entitled to her judgment for five thousand dollars. In the brief filed in her behalf, respondent says that the instruction given in Jenkins v.Locke-Paddon Co.,
There are at least two reasons why the doctrine enunciated in this instruction does not aid respondent here: (1) There is no evidence that a consummation of the sale of the property of the Boss Gold Mining Company, as contemplated by the agreement between it and the persons whom respondent produced as purchasers, would have benefited appellant in any wise or to any extent, even though *226 he did own a large block of the stock of that corporation. Respondent assumes that because fifty thousand dollars was paid to the corporation on the sale of its property, appellant, merely because he was a stockholder, necessarily was enriched by the payment in an amount equal to seventeen thousand dollars. It is true that the purchasers, after making the first payment, refused to go on with the sale, and that, under the terms of their contract with the mining company, they forfeited all of this first payment of fifty thousand dollars. But respondent's rights are to be determined from the facts existing at the time when the oral agreement of employment was made, or at any rate from the facts existing at a time not later than the payment of the fifty thousand dollars, at which time, if ever, she became entitled to the commission of five thousand dollars. Her claim here is that there was an executed contract of sale for one hundred and fifty thousand dollars, binding upon both vendor and vendees. Had the contract of sale been fully performed, as contemplated when it was executed, the purchasers would have received the mining properties and the corporation the one hundred and fifty thousand dollars. But there is no evidence that the properties that the mining company contracted to sell were not worth all of the selling price — one hundred and fifty thousand dollars. Had the properties been worth that sum or more, as is quite possible, and had the sale gone through, appellant would not have been enriched merely because the corporation in which he happened to hold stock had one hundred and fifty thousand dollars in its treasury in lieu of valuable mining properties the title to which it had conveyed. [5] (2) In the second place, and this is a decisive answer to respondent's contention, the contract of employment, as testified to by respondent and her witnesses, was an agreement to pay, as compensation or commission, a definite sum of money, namely, fifteen thousand dollars, or ten per cent of the selling price. It was not an agreement to share any advantage that, as a result of an advantageous sale, might indirectly accrue to appellant as a stockholder in the vendor corporation.
In Sellers v. Solway Land Co.,
Our conclusion is that respondent's oral agreement to find a purchaser is not within any of the recognized exceptions to the rule that "an agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission" is "invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged, or by his agent."
Judgment reversed.
Thomas, J., and Weller, J., 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 August 16, 1920.
All the Justices concurred, except Sloane, J., who was absent. *228