127 P. 56 | Cal. | 1912
This action was brought to enforce the payment of two promissory notes, each for four thousand dollars, which notes were given by defendant to plaintiff. Plaintiff is a real estate agent, and was the agent of defendant for the sale of the latter's ranch. Defendant, a farmer and the owner of the ranch, entered into a written contract with plaintiff agreeing to pay him a commission for his services in "introducing a purchaser and effecting a sale" of defendant's Lakeview Ranch. Plaintiff brought to defendant as intending purchasers Louis Bartlett and George J.G. Marsily. In conversation it developed that Bartlett and Marsily were not themselves financially able to purchase the ranch, but desired an option upon it, hoping to interest European investors and through them to secure the funds to make the purchase. In the negotiations had between plaintiff, defendant, and these prospective purchasers the discussion turned upon the price at which defendant would sell his ranch. A price of twelve dollars and fifty cents per acre and one thousand dollars added was agreed upon. By the time the discussion had *774 reached this point the hour had grown late and it was agreed to postpone further negotiations until the next day. Before separating, and solely to avoid discussion upon the question of price when the negotiations were again resumed, a preliminary memorandum was drawn up by Bartlett at plaintiff's suggestion. This memorandum is as follows: —
"San Francisco, "Dec. 23rd, 1904.
"It is hereby agreed that the Chatom Ranch in Stanislaus Co., consisting of about eight thousand acres, is this day sold to George J.G. Marsily and Louis Bartlett for the sum of twelve and 50/100 dollars ($12.50) per acre and the further sum of one thousand dollars, payable $10,000 when the title to said property has been found to be good and merchantable, thirty thousand dollars July first, 1905, balance in two annual payments of equal size, due respectively July 1, 1906, and July 1, 1907. Seller to assume the commission of J.P. Massey.
"A. CHATOM "GEORGE J.G. MARSILY "LOUIS BARTLETT "J.P. MASSIE."
No copies or duplicates were made of this memorandum which was taken by Chatom, by him intrusted to plaintiff and by the plaintiff produced at the trial. On the following day the same persons met at Bartlett's office in San Francisco pursuant to agreement. Their conversation and negotiations resulted in an option contract in which Chatom acknowledged the receipt of five hundred dollars on account of the purchase price of his ranch, and granted Bartlett and Marsily ninety days within which to make further payment. Provision was made for the furnishing of abstracts by Chatom, to be examined by Bartlett and Marsily, and for partial payments of the purchase price at times stated. There was nothing, however, in the option which made it obligatory in any way upon Bartlett and Marsily or either of them to purchase the ranch. After this option agreement was signed, Massie took Chatom into an adjoining room and asked him to sign the two promissory notes here in suit, representing eight thousand dollars commission on the sale of the ranch. Chatom declined to sign the notes on the ground that the commission had not been *775 earned. He asked Bartlett's advice whether to sign or not and Bartlett declined to advise him. Massie then told Chatom that he need have no hesitation about signing the notes, that he would never have to pay them unless the sale went through.
In reliance upon this statement Chatom signed the notes. The five hundred dollars paid by Bartlett and Marsily for the option was immediately given by Chatom to Massie, and this five hundred dollars explains the payment of five hundred dollars indorsed upon one of these notes. In February, 1905, Bartlett notified Chatom that he and his associate would proceed no further under their contract, and the option thus lapsed. Following defendant's refusal to pay the promissory notes this action was brought. The findings follow the statement of facts above set forth, and judgment was given in favor of defendant under his defense of want of consideration. Plaintiff appeals from the judgment and from the order denying his motion for a new trial.
The evidence not only supports the findings of the court, but it is overwhelmingly in favor of those findings, the evidence of Bartlett, Marsily, and Chatom, the real parties to the option agreement and to the agreement preceding the option agreement, being all to the same effect. Thus, they are all agreed that the contract of December 23d, above quoted, was never meant or understood to be a completed contract of purchase and sale, or anything more than a memorandum of the selling price of the ranch, which memorandum was to obviate the necessity of further discussion upon that subject when they resumed the next day their negotiations as to terms. Moreover, it appears from the testimony of all of them that it was distinctly understood that Bartlett and Marsily, not having the financial ability so to do, could not and would not engage to purchase the ranch, but did desire to secure an option upon it in the hope of interesting European capital in the purchase. It is further in evidence that the suggestion as to the memorandum of December 23d, came from Mr. Massie himself.
Appellant's propositions upon appeal may be thus summarized. He contends: 1. That he fulfilled all the conditions of his agency so as to entitle him to the agreed commissions, — namely: that he produced a purchaser willing and able to purchase the property, who entered into a contract of purchase *776
with the owner satisfactory to the owner himself; and 2. That the defense of no consideration of the promissory notes is not in truth a defense of no consideration, but is an unwarranted effort by parol to vary the terms of a written contract. Neither of these positions, however, is well taken. The duties of a real estate agent under such a contract as the one under consideration are well settled in this state and well defined by such cases asGunn v. Bank of California,
Up to this point it appears that appellant did not secure a purchaser who did enter or was willing to enter into a contract with the defendant for the purchase of the land. The utmost that he did was to secure for defendant persons who took from plaintiff an option to purchase, not enforceable against the intending vendees. Up to this point, therefore, the consideration for the notes had wholly failed. It may be conceded, without deciding the question, that if the option had been exercised and the purchase under it completed, plaintiff would have been in a position to enforce the collection of the promissory notes as representing his commissions on the sale. But with the lapsing of the option all consideration for the promissory notes failed utterly. There is no parallelism between the case thus presented and that of Carver v. San Joaquin Cigar Co.,
No other matters call for special consideration.
For the reasons given the judgment and order appealed from are affirmed.
Melvin, J., and Lorigan, J., concurred.
Hearing in Bank denied.