Heyn v. Philips

37 Cal. 529 | Cal. | 1869

By tlie Court, Sawyer, C. J.:

The question in this case is, whether the contract sued on and proved is a contract “for the sale of any lands, or interest in lands,” within the meaning of the eighth section of the Statute of Frauds, and which is required to he in writing, and subscribed by the party to be charged.

The contract alleged is, that defendant employed said plaintiff to negotiate a sale of certain described lands, and find a purchaser for the same; that it was “stipulated and agreed by and between said defendant and said plaintiff, that if said plaintiff would and should, within ten days from said last named day, find a purchaser or purchasers for said land, at the price of two hundred dollars per acre, that the said defendant Avould sell and convey the same for that sum to such purchaser or purchasers, and that said plaintiff might and should have for his services in making such negotiation and finding a purchaser or purchasers, all that might or could be obtained from such purchaser or purchasers over said sum of two hundred dollars per acre;” that plaintiff found a purchaser at that sum and four thousand dollars over; that said purchaser tendered the money to defendant and demanded a conveyance, and that said defendant refused to receive said sum, or make a conveyance, whereby plaintiff was prevented from receiving the said excess of four thousand dollars as compensation for his services.

It does not appear to us that this is a contract for the sale of land, or an interest in land, Avithin the meaning of the Statute of Frauds. It was a mere contract of employment between the plaintiff and defendant. There Avas no sale of land from the defendant to the plaintiff. The plaintiff was simply employed to find a purchaser for defendant’s land at a gi\Ten price to be realized by defendant, and the compensation to be received by plaintiff Avas to be such sum as he could get for the land over the given price. It is true that defendant agreed that in case a purchaser should be found willing to pay the given price or a larger sum, he would convey to such purchaser upon the receipt of the money so as to enable plaintiff to realize the compensation, and he did not agree to pay anything himself, but this was still but a mode of ascertaining and obtaining a compensation for plaintiff’s services. The plaintiff had no interest, and was to have no interest whatever in the land,- as such. The contract was substantially one of employment to find a purchaser of land, (and not as between the parties a sale or agreement to sell laud, or any interest in land. The subject matter of the contract was the business of finding a party who would purchase the land for a given price and such sum over as would compensate the plaintiff for his services. He found a purchaser, and he was prevented from receiving his compensation by the refusal of the defendant to enter into the contract of sale with the purchaser found by plaintiff

We think the judgment and order denying a new trial should be reversed and a new trial had, and it is so ordered.