E. A. GRAY et al., Respondents, v. THE JANSS INVESTMENT COMPANY et al., Appellants
L. A. No. 6235
In Bank
August 8, 1921
186 Cal. 634
A motion to dismiss the appeal was made by the respondent on the ground that the notice was insufficient by reason of the failure to give proper notice that an appeal was taken. There is no merit in this motion. The notice conforms to that held sufficient in Estate of Faber, 168 Cal. 491, [143 Pac. 737]. No point is made of the fact that Yoshida does not appeal.
Judgment affirmed.
Sloane, J., Lennon, J., Angellotti, C. J., Shaw, J., Lawlor, J., and Shurtleff, J., concurred.
[L. A. No. 6235. In Bank.-August 8, 1921.]
E. A. GRAY et al., Respondents, v. THE JANSS INVESTMENT COMPANY et al., Appellants.
[1] BROKERS-DIVISION OF COMMISSIONS-AGREEMENT-PLEADING AND FINDING-IMMATERIAL VARIANCE.-In an action by real estate brokers to recover of other brokers a part of the commissions received by the defendants from both parties to an exchange of real properties, a finding that the agreement of the brokers was that the respective brokers should receive the commission coming from their end of the exchange is not a fatal variance from the issue raised by the pleadings that the agreement was that the defendants would collect the commission from both principals and divide the same with the plaintiffs, in view of the fact that both agreements were related to and arose out of the same transaction and that the case was tried upon the theory that the agreement was the one found by the trial court.
[2] TRIAL-THEORY OUTSIDE OF PLEADINGS.-Where the trial court and the parties to the action proceed to a trial of the action upon a theory not strictly in accord with the issues raised by the pleadings, and the trial court upon evidence adduced to that issue, and received without objection upon the ground of variance, finds in
[3] BROKERS-AGREEMENT FOR DIVISION OF COMMISSIONS-STATUTE OF FRAUDS.-An agreement between real estate brokers to co-operate in an exchange of properties and divide the commissions does not fall within the inhibition of subdivision 6 of
[4] ID.-MANNER OF HANDLING EXCHANGE-AGENCY BETWEEN BROKERS.-Under an agreement between real estate brokers giving the brokers representing one of the parties the privilege of exclusively conducting exchange negotiations, such brokers became the agents of the other brokers in negotiating their end of the exchange, and the commissions received by them from such end belonged to such other brokers, regardless of whether in the absence of a valid agreement of employment the latter would have been entitled to a commission had they alone conducted such end of the exchange.
[5] ID.-RECEIPT OF LAND AS COMMISSION-RIGHTS OF OTHER BROKERS.-Where under such an agreement the brokers received land instead of money as commission from the end of the exchange in which they acted as agents for the other brokers, the latter were entitled to have such land conveyed to them, rather than a money judgment to the extent of the value of the land.
[6] COSTS-REVERSAL OF JUDGMENT-MINOR PARTICULAR.-Where a judgment is reversed with directions for certain modifications in a minor particular not seriously urged as a ground for reversal, but affirmed in all of its essential features, the appellants are not entitled to recover their costs
APPEAL from a judgment of the Superior Court of Los Angeles County. Russ Avery, Judge. Reversed.
The facts are stated in the opinion of the court.
Lloyd W. Moultrie for Appellants.
James E. Kelby and Kemp & Clewett for Respondents.
LENNON, J.-- In this action the plaintiffs, real estate brokers, sued the defendants, also real estate brokers, pursuant to the terms of an alleged oral agreement, for the recovery of one-half of a commission alleged to have been paid to the defendants by both parties to an exchange of real properties.
The complaint further alleged that defendants concealed from plaintiffs the character, extent, and amount of the commissions so received by them from both owners of the said real properties, and that although plaintiffs demanded an accounting therefor, the defendants refused to acknowledge plaintiffs’ claim of an interest in any part of said commissions so received.
The facts adduced in support of plaintiffs’ case are substantially these: The defendant, the Janss Investment Company, doing business as real estate brokers in the city of Los Angeles, was the agent for the owners of certain lands in the states of Idaho and Utah who were desirous of exchang-
While the exchange negotiations were pending, and prior to the time that the said Idaho and Utah land owners examined the Bowers Hotel property, the defendant Kendall, as agent for the Janss Investment Company, stated to the plaintiffs that complications would be avoided if the Janss Investment Company handled the deal alone, and for that reason requested that the plaintiffs permit the Janss Investment Company to handle the whole of said deal alone, and then and there stated to the plaintiffs that such an arrangement would make no difference to the plaintiffs in so far as their compensation was concerned, and, in effect, said further that the defendant, Janss Investment Company, would protect the plaintiffs in the adjustment and collection of their commission from the owners of the Bowers Hotel property.
The plaintiffs acceded to Kendall‘s proposition in this behalf, and he thereupon requested, and the plaintiffs thereupon consented, that he alone be permitted to show the Bowers Hotel property to his principals.
After the consummation of the exchange, the defendant, the Janss Investment Company, in lieu of a cash commission of three thousand five hundred dollars from the owners of the Bowers Hotel property, accepted, so the defendant Kendall testified, with said owners’ consent and concurrence, from the Idaho and Utah land owners, a conveyance of 160 acres of land admittedly worth thirty dollars an acre. It is a fair inference from the evidence adduced upon the whole case that said 160 acres of land would otherwise have been
The defendant, Janss Investment Company, did not then nor thereafter communicate to the plaintiffs the fact that they had adjusted said commissions earned in making said exchange, and on the demand for a statement from the said plaintiffs as to the amount of commissions collected from the owners of the Bowers Hotel property refused to disclose to plaintiffs the amount or character of the commissions earned by them.
Kendall, the agent of the Janss Investment Company, among other things, testified to the arrangement he had made with plaintiffs concerning their commission to the effect that it was the original agreement with the plaintiffs that they should receive their commission from the owner of the Bowers Hotel, and that the Janss Investment Company should receive its commission from the owners of the Idaho and Utah lands. Kendall also testified that at the inception of the exchange negotiations and for some little time thereafter he considered that the plaintiffs had an interest in whatever commissions might be earned and collected for making the exchange, but that immediately before the deal was closed he concluded by a process of deduction, all his own, that the plaintiffs were not entitled to any consideration
From these, among other facts, the trial court made its findings to the effect that the agreement between the plaintiffs and the defendants was that the defendants alone should conduct the negotiations for the exchange, that the plaintiffs should receive whatever sum was paid as a commission by the owners of the Bowers Hotel property, that the defendant, Janss Investment Company, should receive whatever sum was paid as a commission by the Idaho and Utah land owners, and that the said defendant was to make arrangements for the payment of the commission of the plaintiffs in accordance with said agreement.
The trial court also found the value of said 160 acres of land which by agreement were to be conveyed to the Janss Investment Company as a commission from the Bowers Hotel end of the exchange was the sum of three thousand five hundred dollars. No further question is raised in the case and none is involved upon the record before us of the invalidity of the agreement to divide the commissions upon the ground of public policy because made secretly and without the knowledge of either or both principals.
Clearly, the evidence adduced in behalf of the plaintiffs’ case, as hereinbefore epitomized, not only supports the finding of the trial court to the effect that the plaintiffs and defendants entered into an agreement whereby they would co-operate in an endeavor to negotiate an exchange of the properties of their respective principals, but warrants as well the further finding that such an agreement was subsequently modified to the extent of permitting the defendant to negotiate the exchange alone and collect the commissions therefor from both parties for the joint benefit of both plaintiffs and defendants. Strictly construed, the trial court‘s finding that the agreement of the parties was that the plaintiffs should receive the commission coming from the Bowers Hotel end of the exchange, and that the defendants should receive the commission coming from the Idaho and Utah land owners, is nonresponsive to the issue raised by the pleadings that the agreement of the parties was that the defendants would collect the commission from both principals to the exchange and divide the same with the plaintiffs.
[2] Conceding, therefore, a variance between the pleaded agreement and the proven and found agreement, still the defendants will not be heard to complain of the same after judgment, for it is the rule that where the trial court and the parties to the action proceed, as the record shows was done in the instant case, to a trial of the action upon a theory not strictly in accord with the issues raised by the pleadings, and the trial court, upon evidence adduced to that issue, and received without objection upon the ground of variance, finds in accordance with that evidence and upon the theory that it was addressed to a material issue in the case, neither of the parties will be heard to say on appeal for the first time that there was no such issue. (Clark v. Allen, 125 Cal. 276, [57 Pac. 985]; Schroeder v. Mauzy, 16 Cal. App. 443, [118 Pac. 459]; Frear v. Sweet, 118 N. Y. 454, [23 N. E. 910]; Kaufman v. Bloch, 5 Misc. Rep. 404, [25 N. Y. Supp. 758].)
[3] There is no merit in the contention that the agreement between the plaintiffs and defendants is void because not in writing. The agreement is not one to pay a commission for the sale or exchange of real property. None of the parties to the agreement undertook to pay the other a commission. They obligated themselves in the first instance to do no more than co-operate in the exchange and divide the commissions earned therefor, and the subsequent modification of the
[4] Plaintiffs having confided to the defendants at the latter‘s request, and for the purpose of more effectively promoting the exchange, the privilege of exclusively conducting the exchange negotiations, the defendants thereby became the agent of the plaintiffs in negotiating the Bowers Hotel end of the exchange. Therefore, as between the plaintiffs and the defendants, the commission received by the defendants from the Bowers Hotel end of the exchange was received for and belonged to the plaintiffs (Kohn v. Jacobs, 4 Misc. Rep. 265, [23 N. Y. Supp. 1033]), and having been received by the defendants was recoverable from them, regardless of whether or not, in the absence of a valid agreement of employment between the plaintiffs and the owner of the Bowers Hotel property, the plaintiffs would have been entitled to a commission from said owner had they alone conducted the Bowers Hotel end of the exchange. (Dearing v. Sears, 50 Hun, 604, [3 N. Y. Supp. 31]; Kohn v. Jacobs, supra; Kaufman v. Bloch, supra; Johnston v. Porter, supra.)
[5] It is contended that, granting, as we find, that the plaintiffs have a cause of action upon the pleaded and proven facts, still the judgment in their favor should have been only for a recovery of the land received by the defendant, the Janss Investment Company, as a commission from the Bowers Hotel end of the deal, rather than a money judgment to the extent of the value of said land. This contention, we think, must be sustained. The agreement in suit, although it covered but a single transaction, in effect created a partnership between plaintiffs and defendants, and, therefore, in this action for an accounting the plaintiffs’ judgment, in strictness, upon principle, and in keeping with the agreement found by the trial court, should have directed the defendants
The judgment is reversed, with directions to the court below to enter judgment upon the findings as made, that the defendant, Janss Investment Company, convey to plaintiffs the land received by said defendant as a commission from the Bowers Hotel end of the deal; and for the purpose of having an effective judgment, the court below, before modifying the judgment as now directed, is directed to take evidence for the purpose of determining whether or not the said defendant still retains an unencumbered title to said land and is in a position to convey it to the plaintiffs, and if upon the taking of such evidence the court finds to the contrary, then the judgment shall be for the plaintiffs for the value of the land as originally found.
Sloane, J., Shaw, J., Angellotti, C. J., Lawlor, J., and Shurtleff, J., concurred.
THE COURT.- [6] The judgment in the above-entitled cause having been in effect affirmed in all of its essential features and having been reversed with directions for certain modifications in a minor particular, not seriously urged by the appellant as a ground for reversal, it is ordered that the appellants do not recover their costs on appeal.