*1 445 D. W. Co. Oct. 1918.] Howard parte 438; Ex Bulger, Cal. 432; parte Ex Baldwin, Pac. Kelly, 65 Cal. parte [3 524; Ex 62 Cal. Bernert, ; Ex Pac. parte Sylvester, 550] 81 Cal. [22 ; Ex 673] Sullivan, In ; re Morton, 469] 132 Cal. parte case facts of this 781].) Under App. therefore, is, ordered remand. disposed not we are discharged. he petitioner tern., concurred. pro J., Beasly, Lennon, J., P. October 17, Appellate District. No. 1870. Third
[Civ. COM- HOWARD, Respondent, J. W. W. HOBSON v. D. Appellant. (a Corporation), PANY Judgment Findings — — Bule Issues Qualification Outside Theory judgment stand general rule a cannot Trial.—The plead- findings wholly where the made are outside the issues ings theory, with- qualified where a ease has been tried objection out party, question, vital either that some an pleadings, fact an issue been made made has nevertheless proof issue the introduction addressed thereto. Pleadings — — rule Liberal Construction Qualifications.—The pleadings provided by liberal construction section 452 permit plead- Code Civil Procedure a does insertion ing, by directly construction, set of averments which are neither forth therein import nor within fair forth. those which are set Findings.—There Variance—Complaint variance no material "is alleges effect a contract the de- equally profits fendant to divide gross to be by securing made an price land at a certain selling larger price, the land at a finding stated and a which found profit's, the contract to for one-half the effect net and awarded thal sum. Interest—Liquidated Demand.—Under a contract which the de- give equal profit's fendant an share of the sale, on a made were ascertainable ' simplest calculation the arithmetical moment the sale was made liquidated amount then became a demand on which interest properly allowed. Agreement — — Purchase of Land of Frauds Procure Statute Option.—An from the an procure owner land W. purchase. required by it is not subdivision 6 o£ section 1624 of writing. the Civil 'Cocteto be Superior
APPEAL judgment from a of Sac- Court County. Judge. ramento Chas. O. Busick, *2 The facts opinion are stated in the of the court. Devlin & Devlin, Appellant. for McLaughlin E. Driver, C. Respondent. and B. F. for HART, J. in action The secondamended this is alleged four D. counts. count it that W. first is Company corporation having principal place its a day of Francisco; that, prior business in to San the sixth November, 1912, Maud Moore was the of a owner certain tract “plaintiff County; that, March, 1912, land Colusa agents informed said its that defendant and he could obtain option giving purchase an him the exclusive to land said said, $25,000 thereby for the sum of and then and through agreed plain and authorized agents, to and with plaintiff tiff if option that would secure the said Maud for land sum of sale said for the $25,000,” defendant would endeavor to sell said “and land in the event of such sale would divide the amount received $25,000 equally for plaintiff,” said land in excess pay and would to “oneJialf of said excess sum over $25,000 said commission as his and share of the accru profits March, ing that, aforesaid”; said under plaintiff, pursuant procured agreement, said from said to agreement writing whereby, Moore an Maud the sum for paid tq her, granted of one hundred she dollars defendant ninety-day option land; plaintiff procured to sell said that of said it was in full extensions force and November, 1912; that, on 6th of effect on last- said purchased mentioned date, defendant twenty-five Maud Moore sum thousand said dollars same to one Von Grafen and sold the Chester for $33,890; agreement that, pursuant said par under promised pay defendant hereto, ties one-half amounting $4,445; profits, that demand of said was made W. Hobson Co. payment sum, said which remains defendant unpaid. alleged
In the second it is that defendant cause of action $4,445 received from Chester Von the sum Grafen of plaintiff, paid. use which has not been alleged May, It is cause of action third “plaintiff into defendant entered an pro- terms if plaintiff of which would commonly cure from known ranch owners of that certain ” county Yuba, Campbell ‘A. Ranch,’ W. in the price “an at a contract to said ranch per assign $60 exceed acre and would contract to de- fendant, his pay plaintiff defendant would services in ” procuring said contract $200. the sum then assigned secured said contract and defendant; pay- same he demanded defendant the ment of two dollars, hundred but that said sum remains due unpaid.
In the fourth allegation cause action the is that defend- ant received two hundred dollars for the use of *3 option account of the contract mentioned the third count. allegations answer The denies the of the first and second counts of complaint; procurement by the admits the option of the set forth in the complaint, third count the alleges but premises that agent acted the as the employee rights and the defendant and held all under the defendant; contract as trustee for denies that defendant assignment agreed, option the by plaintiff of said to defendant, him pay to two hundred dollars and denies that plaintiff by other sum is due reason of the facts .said alleged; and denies averments, contained in the fourth action, that cause defendant received sum of two hun- plaintiff. use dred dollars for the allegations court found complaint The were that the denials true and the answer were untrue. It was found, language in the exact then of the complaint, that plaintiff procured an pursuant Maud Moore to defendant, assigned agreement with the same to defendant property that defendant sold the and to Von Grafen. defendant', “in making was next found said sale ex- paid $1,786.24; pended and out” profit “that derived in making defendant said sale is said the difference between D. W. expenses, $25,000 total of said $33,890, $1,786.24, less making sale making said profit a net defendant received profits is sum $7103.76; half of said that one making $3551.88,” defendant which sum “was received Von Chester Grafen premises the said and from sale of findings fol- then plaintiff.” for benefit of use and allegations with reference to low the of the Campbell for sale ranch. "the of the sum Judgment plaintiff for the in favor of was entered 6th of Novem- $3,751.88, $3,551.88 interest judgment. ber, appeal 1912. is from the support find- sufficient to The record discloses evidence ings employed plaintiff to secure : 1. That the .both giving to options for it it the exclusive that, Moore as to the Campbell properties, the Moore ranch, agreed plaintiff to reimburse the defendant securing pur- performed him for the services equal him of sum payment to chase the same defend- amount which the one-half of the net excess over the it, land for pay ant was the owner Campbell obtaining purchase the that for for it the plaintiff the sum pay the the defendant procure plaintiff did of two 2. That the hundred dollars. options properties involved said for options subsequently sold were they for which were amounts, respectively, in excess of those purchased from the owners. upheld judgment cannot be
But it is contended materia] is a reasons, viz.: 1. That there several these findings joined; and the issues variance between the findings conflicting contradictory, and are insufficient are reason while support judgment the asserted gross profits one-half of the pleaded ranch, judg- might from the sale be obtained of the net found have been is for one-half ment *4 allowing 2. That the court erred in from said sale. realized $3,551.88, which sum was found to be on the sum of interest profits realized the sale of the Moore one-half of allowing testimony erred of 3. That the court ranch. by procure employment the defendant to oral refusing mentioned, strike out testi- options such refusing grant motion for non- defendant’s a mony W. objec- grounds such plaintiff’s ease, suit on the close employment of being that the tion and motions (so writing, as is not in was oral or above indicated 1624, subdivision by section contended) in such cases evidence uncontradicted 4. That the of the Civil Code. oral or plaintiff was employment shows that the plain- employment by writing, purported such a hence consequently the was void and purpose tiff for the stated contrary to the evi- employment is finding contract of of a complaint related alleged in the dence. 5. That the contract having and, “original option,” only term contract, a new property, the owner been extended original option entirely from the independent of and distinct and with which plaintiff, thereupon arose as obtained There are some no connection. contract the had head, to which due propositions under this other advanced of the discussion given will course attention be follow. findings waived, judgment Obviously,
1. where are wholly issues findings can stand where the are .outside which, general rule, pleadings. This made is the applied in which is however, qualification has a limited theory, has tried those instances where a case been question, objection party, some vital without either pleadings, nevertheless not in fact made an issue has proof addressed been made an issue the introduction of thereto. respect
The rule in this state to the construction effect, determining pleading, purpose its is that a liberally construed, allegations must be with a view to Proc., (Code justice parties. Civ. substantial 452.) assumed from that rule of con- see. not to be may however, that construction there struction, be inserted pretermitted averments, or pleading vital averments a directly reasonably set forth therein nor neither which are language import of fair those which are within the may, if themselves But the averments without set forth. construction, doing or without violence to lan- a strained clearly imply a state fact held essential to the guage, support theory of action or to the of a cause statement must be had to make out a reliance upon case or should rule the code invoked defense, then App.—29 *5 Co. v. D. W. Howard pleading promotion of substan- construed with a to the view justice parties tial action. the By light complaint the stated, of rule the here thus viewing it, agree must be and so we to the considered, cannot proposition objection against that it is made obnoxious to the by allegation the defendant. It will be observed that the respect compensation plaintiff procuring with of agreed ranch by the Moore is that it was and between defendant, that in defendant the event of by ranch, a sale it of said “would divide the amount received twenty-five land in of equally excess dollars thousand plaintiff.” directly allege Nowhere complaint expressly does the or gross upon division basis be of Indeed, realized the sale the land. it is therein gross profits, stated whether the division shall or net be merely but twenty-five in the amount excess thousand dollars so received the defendant on The word the sale. “receive,” “received,” is, many in our lan- like words guage, may a term, meaning signification relative and its different, according the circumstances under which and employed. the connection in which it is this case it seems “received,” us to be that manifest the word in used pleaded agreement, money has reference to the amount purchase price excess of the Moore ranch which the parties are retain for entitled to their own use benefit— say, is to that that sum the excess which remains after all expenses negotiating necessarily incurred in and consum- paid. mating land been sale of the the defendant have expenses broker, selling property, If a land or incurs other pays said that has cannot be he received same, compelled for his services or sums which he has the sum been liquidation expenses expend so incurred. Therefore, complaint that we conclude what the means stating equally that the defendant to divide with the in excess price amount received, ranch defendant upon should the basis of the net division gross is, realized from the excess sale—that for his should services one-half receive what was transaction, result of actually earned as a and what is actually reasonably earned cannot be in- "W. money paid carry eluded That out out the transaction. interpretation this word “received” correct complaint, used and that said word was intended describing to bear meaning indubitably his shown alleged: paragraph pleading, 6 of that wherein it is “That *6 purchase property said and sale of said forth in real as set preceding paragraph complaint pur- the last of this made agreement plaintiff suant said between and defendant and whereby agreed pay plaintiff promised defendant and one- profit resulting half of the from the and sale said resulting profit real . . the pur- . and said agreement chase and sale and which . . . was to be equally eight divided them was is sum the eight thousand ninety dollars,” hundred and etc. says People v. “profits,” supreme
The word the court Savings 498, “signifies 199, 499], 72 Cal. Pac. Union, [13 advances,” an excess of the value value returns over the Connolly Davidson, as the 15 Minn. or, word is defined v. receipts Rep. 154], Am. it means “the excess over [2 Board, Eyster Finance, expenditures,” or in v. Centennial receipts 188], business, U. S. Ed. of a L. it is “the [24 deducting expenses; equivalent is current it the net ’’ receipts. necessarily
But does the fact the follow from that plaintiff complaint than asked his for more the court agreement found that he was entitled under the that a var- iance thus pleaded arises between the” contract and the one gist agreement found the court. the that the thereby employed defendant the secure an the promised Moore ranch and the pay plaintiff assuming, service, pur- pose argument only, that the sued for one-half gross excess, developed the situation which at trial with simply reference to contract is this: That proof that, stating complaint showed in his the amount due him from terms of virtue said con- tract, larger found, he a claim for a sum made than the court upon evidence, actually sufficient that he was entitled to there- very upon. under—that under the is, declared agreement arising difference thus upon declared findings evidence have could misled D. W. upon maintaining its defense prejudice in defendant to its be, merits, and, variance, if variance there therefore, operate to overthrow cannot be made to is immaterial and 469; Morris, Taylor judgment. (Code Proc., sec. Civ. McConnell, 717, 724, ; Doolittle v. 66] misleading the 305].) Indeed, far from amount claimed defendant, the fact that a difference in the actually him due amount found brought agreement was out the defend pleaded under the assuming suggested (again further ant itself. is to be up which calls for a an sets excess) gross upon amount of the division the basis considerably finding the sum due him is favorable to the so claimed than that less point of fact suffered is obvious that the latter and thus it prejudice from the variance. having findings, fol- foregoing It results conflicting complaint, neither are lowed the averments of the aspect from material nor nor variant contradictory, any- added, we find joined. do Nor, the issues should point under thing in cases cited *7 objection supports its present consideration which materially cross-purposes with findings the issues are at as so declared by or with the contract tendered upon. legal allowing interest court was
2. We think the plaintiff in eexcess amount” for which on the share of the th the sixth ranch was sold the defendant from the Moore latter sold 1912, day which the day November, on things, among (Civ. .1917.) is, other Code, It sec. ranch. express is an con that, unless there that section provided payable writing, fixing rate, interest a different tract moneys, per annum on after per cent rate of seven at the use of another and due, “received they become have ’’ money case, coming to the In this from him. detained profits realized the sale of his share of plaintiff as day sale was made on the due the ranch became argued, however, the one-half of defendant. plaintiff by the ranch excess of money received money plaintiff’s not “was re price thereof plain to be turned over to as a collector by ceived version the contract the own excess plaintiff’s on but tiff, 453 W. merely compensation sum was taken as a measure of the findings have, -according and, which was to he court, that measure amount remained unknown until the repug unsupported net ascertained. money finding plaintiff’s nant use received “nothing argument, remains being rejected,” proceeds the finding plaintiff”; hut unliquidated of an demand due to unliquidated and it is added that interest is not allowable citing McLaughlin, 60, 76 Am. St. demands, Cox v. Cal. [9 Rep. 100], Argonaut 18 Land 164, Pac. Swinnerton v. Co., 719], 112 Cal. Pac. [44 stated,
As above the moment of the ranch was sale fully completed by defendant, effected and moment equal the latter became indebted to the in an amount one-half of the net sum received the defendant over and paid for the the-ranch; above that to the owner of be- at that moment of time the amount due the becoming readily capable came so certain and definite simplest of arithmetical calculation of the difference “excess amount” and necessary expense amount of the which was for it to incur negotiate and consummate the sale. The precisely expense selling knew what the the ranch course, to, and, course, amounted knew the “excess amount” re- by him purchase price. ceived from the sale over the plaintiff, amount therefore, due the constituted, within the meaning law, liquidated demand. given by
The sole reason the cases denial interest on unliquidated demands person is “that liable does owes, therefore, and, know what sum he can in no default- paying.” (Cox McLaughlin, v. 76 Cal. Am. [9 100], See, Rep. also, Courteney 18 Pac. St. v. Standard Co., App. 600, 613-615, Box Cal. Pac. McCowen 778]; [117 App. 482, Pew, 354]; Pac. Robinson v. Ameri App. 212, Co., 388]; can Fish Fairchild v. Bay Ry. Co., App. 328, ; Point etc. 338] *8 Meyer App. 96, Buckley, 510].) disallowing unliquidated reason of the rule interest on de application facts case, mands has this since, shown, precisely knew above what sum it owed plaintiff. v. T>.W. Howabd cited, Argonaut The case Swinnerton v. Co., Land on a 719], was an action by an quantum performed professional meruit for services attorney law, point at In all is not here. cases founded matter, implied express on contracts, or contracts for that except upon an where the amount due cannot be ascertained (on contracts) accounting, implied it cannot be or where showing except upon reasonable ascertained evidence goods sold, of the value of services rendered or the reason denying thus ascertained to rule interest the amount applies peculiar such pertinency, due with for the demand But, have unliquidated cases is the strictest sense. we merely shown, no such a case. Nor does it become this is one courts appeal to the because the stated, agreement. As the enforcement of the terms agreement was fixed the amount due under com only refusal the defendant certain, and it may be necessitated, as ply plain provisions its which with note payee promissory of a in the or holder true case obligee obligation, definite and of an or that other- due, a including .in that of the amount terms, certain its compliance judicial proceeding to a to enforce resort terms. they are in which points in the order
3. Both given, premise so far as is concerned above involve, authority thereof, That proposition,, viz.: the same pur- negotiate secure the plaintiff to for and for the defendant was void because of the Moore ranch chase theory upon writing. points which these are ad- defend- employment is that the vanced question came securing purpose of ant for the 1624, subdivision of the Civil section the terms of within authorizing or that “an provides which Code, or sell estate agent real or broker to employing an invalid, “unless commission” is compensation thereof, writing inis or memorandum note same, or some agent.” -charged, Ms party to be by subscribed like of Civil Procedure contains a 1973 of the .Code Section 6 thereof. in subdivision provision were, at the time Both the founded, this action is real estate upon transactions The contract entered city of Sacramento. into in brokers *9 455 Co. u. D. W. ranch described respect to the Moore parties with purchase of real not the sale or in the was for to required expected property. All was pur agreement was to secure an do under for the agreement related chase of the land to which pur of sale and option is defendant. An neither a purchase land or other agreement chase an nor to sell the owner property. option is An a contract right purchase to property invests another with the exclusive reason a limited or property stipulated such a sum within at agreement sell and future, to and, able time unlike an party upon purchase, imposes obligation purchase no to 204, (Menzel given. Primm, to whom it v. is cited.) 754], As above and authorities therein obligation stated, imposed there was no negotiate purchase agreement question for the to simply property defendant. He was referred to give employed to of the ranch induce owner de certain property within a right fendant optional it to wholly exercise time—a which it was being of the nature exercise, as it saw Such fit. agreement property, parties the Moore between writing. legal necessity reducing it to there was agreement words, pro other an not come within the such does nor, Code, visions of section the Civil subdivision valid, by any provision of it statute to be our writing “signed by party to be frauds to be may go charged,” we and hold even etc. But further necessary question if it to concede were employment involved the effect defendant, still, agree since said the Moore a real brokers and between estate ment was necessary, it was not land, the owner broker and should have conformed to valid, that it the formali make it of section 1624 of subdivision the Civil prescribed ties Code. shows, pointed out, as above that both the
The evidence real estate brokers, were and the defendant the sale of commissions for the land had undisputed that Therefore, defendant. there existed been received paid have the defendant could of which out com- fund Howard W. A-pp. missions which the promised court found had pay plaintiff. In Gorham Heiman, 289], the action by was certain against real persons estate other en brokers
gaged in a like business commission for a certain plaintiffs be due the for the sale of under an oral a mine agreement. There, agree here, contended that the ment which the action was based was void because it *10 writing not in signed by and as 1624 of the section supreme Civil Code. The court, by Justice the late Chief Beatty, reply in said, “But, to proposition, reading complaint together, whole apparent it is merely buy was to brokers, sell as and there is requiring writing. statute of frauds such contracts to be Besides, enough there is of to show cause against appellants, independent action of of the contract partnership. agreement an co-operate It shows obtain to ing authority equal sell, to an share selling and in a mine for agreement of the It shows' was acted commissions. that the . upon performance col part plaintiffs, It on shows by lection of appellants, commissions refusal Certainly divide. if establishes a cause of action this agreement valid, ground upon was know no and we rely it can be held invalid. Counsel 1624 seem to section But, clearly, provision Code, the Civil subdivision 6. only designed against was un protect owners of real estate agreements It claims of brokers. does not extend founded co-operate brokers making for a share sales may be, argue, the commissions. It as counsel that the allow ance this plaintiffs of such claims as interveners make in they are, by any action, unsupported, as written evidence contract, gross opens frauds of a nature the door to as the, perpetrated by pre real ever brokers under were estate employment owners sales; tense of oral to make but legislature remedy. so, if is one which the alone can the evil argued gen plausibly might It contracts should writing; if erally void but be held not the law otherwise. ” 1622.) (Civ. Code, sec. foregoing point present is decisive of the under consid- though assuming, eration, conceding, purpose that the employ to here referred authorize purchase real estate for the defendant. A W. 457 Hobson Co. appellant analysis following careful cases cited any way they modify qualify will or show that do change an, 90 as it is Heim Cal. rule declared Gorham v. 346, App. 289]; 372, Schleicher, Pac. Aldis v. Cal. [27 [99 ; 526]; Casey App. v. Pac. Richards, 58, 10 Cal. 36] [101 Yoakum, ; App. 543, v. Saunders 1007] Porter, ; Johnston v. Sellers App. Pac. 69] Solway Co., Land Pac. 175]. involve, propositions 4. The last discussed in briefs among question others, whether the Moore ranch procured the defendant was under the an subsequently under secured defendant itself without the of the aid former. appears that the executed dated
April 19, ninety days and was run for from said date. As a therefor, consideration paid the owner sum the land provided $50. payment first price ($24,950) on the land days July should $1,950. be the On 1912—two sum expiration option—the before the of the time limited paid accepted the owner and the latter the sum of one payment dollars on to be hundred account first *11 pay- made time, thereunder. At the same the the time payment on by the balance the first was extended ment 19, 1912, Mrs. Moore to October on and the date it latter further extensions, extended November 1912. These together acknowledgment receipt of the one the writing payment, hundred dollar were indorsed on the back original option, signed of the written by Mrs. Moore. evidencing is, the second extension time—that October 19 November 1, 1912—the words “October nine- teenth” words first” were erased the “November inserted by thereof, in lieu interlineation the indorsement “M. M.” (the Moore) being subjoined initials of the owner Maud thereto. specific alleged contention is that the contract as entirely original
proved related term of option, no agreement covering and that “there evidence that, options”; new extended time or since “it was condi precedent as tion under the contract and found that by profit realized an excess or should be reselling option exercising at an ad App. W. condition necessary prove price,” vanced it was proof failure of fulfilled, had was a been and that there ‘‘ pur fulfilled, appearing said condition had been after it but was made option, chase was not under the made ” any legal binding ceased to have effect. argument necessary It is here the advanced to restate by propositions. appellant in above stated We support of the purchase opinion say our is that the deem it sufficient option by was under land, of the the defendant by payment the de procured by plaintiff. The for it pay on account of the first one fendant of hundred dollars agreement upon the option required be made ment right of its thereunder exercise the defendant procured option, the term the as was made before expired. act and fact of plaintiff for had the defendant acceptance by payment the defendant and price of one hundred dollars on the owner of the by the defendant operated, ipso facto-, the ranch as an exercise right such there optional of its as upon became a officio, became and likewise funchis mutually binding upon Moore for the sale of ranch (Smith Bangham, 156 the defendant. Primm, 6 (N. S.) 689]; 104 Pac. Menzel v.
L. R. A agree being 754].) There then -made, to, when existence, the extensions referred ment option agreement, the “term” of the could not have related to entirely which was deferred time to but had reference payment first payment of the balance option agreement upon exercise to be made course, thereunder. Of optional its defendant of Moore, and Mrs. after not be will denied that optional right, accepted or exercised former had such further or differ could make thereof, exercise they payment pleased the terms arrangements ent and, they so, if did do it cannot well price, was to create a new thereof the effect be said that arrangements simply would mean that new agreement. Such *12 introduced into the had been contract of terms different or optional of the defendant by the exercise sale obtained agreement option procured for it the right secured words, Mrs. had plaintiff. other the by the it first if payment, as to the any default default waive right W. Hobson Co. upon was, there or to the payment extend time of such the acceptance right optional the such the part plaintiff action on her could not affect the against to claim stipulated compensation the defendant the agreement for his procuring services in for from it the and under which obtained from Mrs. Moore the purchase. of sale and presented with those last connection proposition, considered, finding profit
above of an or excess sale sup- defendant the Moore ranch is ported, appears because it evidence the “de- $12,000 mortgage given fendant remains liable for debt price,” and, therefore, yet cannot be “it told any that there will "profit,” merit. excess devoid of or predicate argument support point of this agreement upon by under the plaintiff, one declared upon paid conditions which the was to be profit one-half of the excess or realized from sale of the ranch was that the fund from which the was to be so paid was to be profit that created excess such or ac- tually received We do not defendant. so read the pleaded agreement. proposition, As to that alleges agreed “that if would .secure said Maud Moore for the $25,000, sale of said land sum . . . would under said effect endeavor to a sale of said land for a $25,000, sum in excess of the event of such sale would divide the amount received said land in excess $25,000 equally plaintiff, and it was then and there plaintiff procured . that if . . as aforesaid Maud . from said Moore . . defendant would $25,000 of said land for sum pay sale excess to said sum one-half of said excess ... as his commission profits accruing and share of the option.” under said Thus provision will be noted that is no there in the payment plaintiff’s share of the on the ranch was to postponed sale beyond deferred time at which the sale actually of said ranch was effected completed. suggested, As before the amount of the excess plaintiff’s share thereof could be known immediately being upon the' made. The sale defendant could require payment plaintiff to wait his one-half of *13 W. profits was mortgage realized from debt the sale until extinguished, agreement' unless there was a in the covenant to effect, covenant in the and, seen, there was no such agreement. Moreover, had received all but the defendant twelve thousand dollars sum which land for it sold the "of grantee, paid profits had out derived expenses negotiating" in com- the sale the incurred pleting Therefore, stated, the sale. it is manifest above only that it possession was not from which the fund plaintiff’s paid, but, share was to be knew obviously, precisely how profit much the excess amounted to. option Campbell writing
The ranch was in plaintiff, assigned by writing who under a preceding agreement by oral plaintiff, upon procuring it, paid said for would be by it the sum of two What hundred dollars. has been respect herein with parties the oral procurement for property on the Moore applies equal agree- pertinency oral and force procurement by ment between them for the Campbell property. on the assignments involving objec- The several error rulings admitting testimony tions to certain are connected questions discussed, above and further consideration unnecessary. is, therefore, thereof herein judgment appealed is affirmed. Chipman, J., J., concurred. Burnett, P. court, supreme
A petition to the cause heard have appeal, was judgment after the district court of denied following supreme December court on opinion rendered thereon: then court, hearing in The applicationfor a this
THE COURT. appeal district court of of the third in the after decision district, appellate is denied. say application, proper we deem it denying 6 of prepared to hold subdivision section are not
we applicable simple is not the case of a of the Civil Code agent proposed estate broker and a between a real estate to obtain an real purchaser Moody. Ackerman clearly purchaser. opinion that this shows plaintiff and de- joint part substance a venture on the party, and of a third fendant the sale real profits distribution of between them. The district clearly right concluding appeal court of that subdivi- sion 6 of section of the Civil Códe does not extend agreements co-operate making brokers sales the sake the commission or and that this sub- stantially was such a case. *14 Appellate District. No. 2774. Second October 17,
[Civ. JOHN MOODY, S. ACKERMAN al., Petitioners, et v. H. L. City
as Auditor of Diego, Respondent. of San Municipal Diego Corporations—San Charter—Board of Education city right —Recall.—Under Diego, charter of the of San to recall members of equally the board education city. elect such members is vested city Id.—Mandamus.—The Diego may compelled auditor of San certificate, prescribed by mandamus to make his ás 14 of section chapter charter, 2 of article II of the to the effect that indebt- calling edness to be under a primary incurred resolution election purpose nominating candidates the offices of members the board of education case the incumbents be recalled at a election, might recall be so incurred without the violation of provision. charter against city PROCEEDINGS Mandamus auditor City Diego. of San opinion facts are stated in the of the court. Sloane, Harrison G. for Petitioners. Libby, Respondent.
Warren E. City
T. B. Cosgrove, Attorney, Amicus Curiae. CONREY, P. J. proceedings In accordancewith regularly taken purpose for that the common council city of San