189 P. 457 | Cal. Ct. App. | 1920
Plaintiff sued defendant for four thousand dollars real estate commission for procuring one Ralph Granger to assent to the terms of an agreement for exchange of real estate, which was drawn by defendant's attorney. The cause was tried before a jury, which rendered a verdict for four thousand dollars in favor of the plaintiff. The trial court granted defendant's motion for a new trial, and from this order the plaintiff has appealed.
The pleadings admit that the defendant executed and delivered a certain instrument, which is set forth in paragraph I of the complaint, and which appears to be an agreement for the exchange of real property between the defendant, P. Max Kuehnrich, as party of the first part, and Ralph Granger, as party of the second part. It was stated in said agreement that the party of the first part *470 therein (the defendant herein) was the owner of certain property in Los Angeles (describing it), which he desired to exchange for certain real property in Brooklyn, New York (describing it), owned by Ralph Granger, the party of the second part therein. The terms upon which the defendant was willing to exchange his property for the property of Granger are therein set forth in detail.
The agreement bears date of October 28, 1915, and contains the following paragraph:
"It is understood, however, that the first party (Kuehnrich) shall have seventeen days from and after the 28th day of October, 1915, within which to inspect said property of second party, and that first party, if not satisfied therewith, may at any time during said period cancel and terminate this agreement. W. H. Houghton (plaintiff herein) are hereby authorized to act as my agents in negotiating an exchange, and I agree, that if they shall secure an acceptance of the proposition to exchange the above described properties on the above terms, I will within 2 days furnish a certificate of title or abstract from a competent searcher of titles, together with a deed of bargain and sale, conveying a good and sufficient title to the property above mentioned, except as aforesaid. . . It is further understood and agreed that if, for any reason whatever either or all principals to this agreement shall fail to comply with same, and in consequence this exchange shall fail of consummation, then the parties or party at fault for such failure hereby agrees to pay W. H. Houghton the full commission for both sides together with attorney and escrow charges.
"It is further agreed with W. H. Houghton, that when they have received an acceptance to exchange the above properties, on above mentioned terms, I will pay them the sum of $2500. as commission for such service, irrespective of any commission paid by the other party."
This agreement was signed by Kuehnrich, the defendant herein, and witnessed by H. B. Mathews. Immediately following their signatures is written the following:
"This agreement witnesseth: That I, Ralph Granger of San Diego, owner of the second herein described piece of property, hereby accept the proposition of exchange made *471 therein upon the terms stated and agree to furnish a certificate of title or abstract from a competent searcher of title, within 22 days showing property vested as described and to furnish a good and sufficient deed of conveyance as directed. I agree to pay to W. H. Houghton the sum of $1500. commissions for services rendered.
"Dated Oct. 28th, 1915.
"(Signed) RALPH GRANGER.
"By W. H. HOUGHTON, Agent,
"W. B. MATHEWS, Witness."
W. H. Houghton was not authorized by any instrument in writing to sign Mr. Granger's name to the above paper. He talked with him over the telephone and was told by him to execute the contract, and it was upon this telephonic authorization that he signed Mr. Granger's name.
Within seventeen days after October 15, 1915, Kuehnrich, the party of the first part in said agreement, sent to Mr. Granger, at San Diego, a telegram worded as follows:
"You are notified that I am not satisfied with your property known as Clinton Apartments in Borough of Brooklyn, New York City, described in our agreement of exchange dated October twenty eighth and hereby cancel and terminate said agreement.
"P. MAX KUEHNRICH."
It is to be stated that plaintiff is not a party to any of the above documents. His name appears on the exchange agreement, not as a party thereto, but simply as agent for Mr. Granger for the purpose of signing his name thereto. He had no independent contract for the payment to him of a commission for making the exchange. His right to any compensation was dependent upon and inseparably bound up with the agreement of exchange which contained a cancellation clause for the benefit of the defendant.
After the cancellation of the contract by the defendant, Houghton sued Kuehnrich for four thousand dollars as broker's compensation, being two thousand five hundred dollars claimed as due on Kuehnrich's promise and one thousand five hundred dollars due on Granger's promise. As stated, the jury found a verdict in favor of the plaintiff for the full amount sued for, and on motion of the defendant *472 the court set aside the verdict of the jury and granted a new trial.
Respondent attempts to justify the action of the court in granting the motion for a new trial upon several grounds. We do not deem it necessary in disposing of the case to enter into a discussion of all of them. We think that upon the merits of the case, as drawn from a construction of the written contract of exchange, coupled with the proved facts, the plaintiff was not entitled to recover.
The circumstances under which a broker is entitled to his compensation for finding a purchaser of real estate are thus stated by the appellate court in Stewart v. Bowie,
We are of opinion that this case must be governed by the principles announced in cases like Jennings v. Jordan,
"Unless and until the exchange was consummated, the parties would receive no benefit from Eppinger's efforts; and, as we have seen, there was no obligation existing to pay Eppinger anything except that arising from the written agreement under consideration. The provision relating to such payment is not separable from the remainder of the contract; and certainly as to Jordan, when the other party to it found himself unable to comply with its terms and consented to its cancellation (Jordan already having a right to rescind it), the whole contract fell, the provision relating to Eppinger's compensation with the rest."
These cases are referred to in Stewart v. Bowie, supra, as follows: "In such cases [referring to Jennings v. Jordan andBrion v. Cahill, supra], the broker, not having the protection of the ordinary broker's contract for compensation for services to be performed, must stand or fall by the contract actually entered into, and if he has seen fit to allow the payment of his compensation to be dependent upon the performance of the contract made between other parties than himself he cannot complain if through the nonperformance of that contract his own contingent right be lost."
[1] The case at bar is very much stronger in favor of respondent's position than either the Jennings or Brion cases. In neither of those cases did the contract give to either party the privilege as does the contract here of terminating it within a specified time. In both of those cases the exchange was not consummated because one party to the contract had not a good title to convey, and the contracts were either abandoned or rescinded for that reason. In the case at bar the exchange was not consummated because the defendant, availing himself of an express provision *474 of the contract, gave notice before the time fixed by the contract for so doing that the contract was terminated and annulled. The exact language was: "I hereby cancel and terminate said agreement." The provision of said agreement for the payment of a compensation to plaintiff was an integral part of it, and when the contract was canceled and terminated all its provisions were canceled and terminated, including the provision for plaintiff's benefit.
The only contract that ever existed providing a compensation for plaintiff having ceased to exist, he is in court without any contract to support his claim and cannot recover.
Counsel for appellant rely upon the case of Jauman v.McCusick,
When such option was exercised, it occurs to us the plaintiff's right to compensation no longer existed.
The case of Ketcham v. Axelson,
Appellants call attention to a clause in the exchange agreement wherein it is agreed that if for any cause either of the land owners should fail to comply with its terms and in consequence, the exchange should fail, the party or parties at fault should pay the plaintiff his full commissions, and claim that this clause secures him a right of recovery. Obviously, this has no reference to the contract becoming unenforceable between the parties by reason of its cancellation by the defendant acting within the rights given him by the terms of the contract. Each party had agreed to do certain things, such as to give certificates or abstracts of title, to execute certain mortgages, to execute deeds conveying title, etc. Either one, or both, might neglect to do some or all of these things, and as a result no exchange of properties be made, and the clause refers to such contingencies.
Neither party could be said to be in "fault" when simply doing or omitting to do the very things which the contract specifies he might do or not do.
As we are of the opinion a fair construction of the terms of the contract, viewed in connection with what transpired, leads to the conclusion the plaintiff has not a right of recovery, it follows that upon this ground alone the court *476 was justified in granting the defendant's motion for a new trial.
The order granting a new trial is hereby affirmed.
Hart, J., and Burnett, 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 May 6, 1920.
All the Justices concurred.