166 P. 867 | Cal. Ct. App. | 1917
This is an appeal by the defendant from the judgment and from an order denying his motion for a new trial.
The complaint states simply that the defendant became indebted to the plaintiffs in the sum of one thousand dollars for money had and received by the defendant for plaintiffs' use and benefit.
The defendant answering denies that he became indebted to plaintiffs in said or any sum of money had and received by him for plaintiffs' use and benefit, "or in any other manner or at all." As a further defense he avers that on January 31, 1914, he received from plaintiffs the sum of one thousand dollars in accordance with the terms of a written agreement which is made a part of his answer, and in which it is recited that the defendant, Mack, received the one thousand dollars from plaintiffs and agreed to hold and dispose of it in accordance with the agreement; that the plaintiffs were the owners in fee of three lots and improvements in a subdivision known as "Corte Madera Woods" and a six-room house thereon; that Anna M. Howes and Earl E. Howes owned a lot on Parnassus Avenue, in San Francisco, with an apartment building thereon; and then provides that if within forty-five days Mack shall secure from Mr. and Mrs. Howes a grant, bargain, and sale deed conveying a clear McInerney title, free of encumbrance, except that of a trust deed for five thousand dollars, to their property on Parnassus Avenue, then if plaintiffs shall deliver a deed conveying the Corte Madera lots, free of encumbrance, together with three thousand dollars in money to a grantee to be designated by Mack, the latter will then deliver the Howes' deed to the plaintiffs. The contract further provides that if Howes and his wife should fail to execute the contemplated deed of their property or Mack should fail to deliver it to plaintiffs "upon their complying with the conditions stipulated upon their part," Mack would refund the one thousand dollars to the plaintiffs. The contract further contains the following provisions:
"In the event, however, that I secure the aforesaid deed from Anna M. and Earl E. Howes transferring and conveying the said property free and clear from all encumbrances as aforesaid, save and except the trust deed above mentioned, and offer to deliver the same to P. J. McInerney and William J. Madden, within the above-mentioned period of forty-five *155 days and they shall fail or refuse to carry out the terms and conditions hereof, to wit:
"The delivery by them of a good and sufficient grant, bargain, and sale deed for the said property above described accompanied by an additional payment of three thousand dollars, then and in that event I am to retain the one thousand dollars, paid me this day as liquidated damages for their failure to carry out this transaction."
The agreement was signed by Mack and by McInerney and Madden.
The only other allegation of the answer is that plaintiffs "failed and refused to comply with the conditions of the said agreement," and that by reason of said failure "the said plaintiffs were not entitled to receive the said sum of one thousand dollars, or any part thereof," and further, "that said plaintiffs have waived all their rights and claim to said sum."
The trial court found all the facts, except the execution of the agreement, against the defendant and gave judgment against him for one thousand dollars and costs.
Mack never actually obtained personal possession of a deed from Mr. and Mrs. Howes, but they executed a deed to their Parnassus Avenue property, in which McInerney and Madden were named as the grantees, and left the same in the possession of their attorney. There is a conflict of evidence as to whether this deed was ever offered or tendered to either McInerney or Madden, but the court must be presumed, in support of its findings above mentioned, to have concluded that there was no offer or tender of this deed to the plaintiffs. The evidence indeed is strong in support of this position, Mack alone testifying to facts tending to support an offer by the attorney of Mr. and Mrs. Howes to deliver the deed, and the attorney himself refusing to corroborate this testimony of Mack, while the plaintiff McInerney, who was the active negotiator for himself and his cotenant in the transaction, positively stating that no such offer was made, and that he never knew of the existence of the deed referred to until the beginning of this action.
Upon the examination of the title to the Corte Madera lots it was found that a triangular piece of land three inches wide at the front of the property on Morningside Drive and tapering back to a point at a distance of ninety-eight feet from *156 the drive, had been omitted from the conveyance by which McInerney and Madden got title to the lots. This strip was of a value of from seventy-five cents to two dollars, and was situate on the side of the property farthest from the improvement thereon. The three lots themselves were of a value not exceeding five hundred dollars; the value of the six-room house on the lots does not appear in the evidence to the bill of exceptions. McInerney and Madden asked and received from Mr. and Mrs. Howes, a five days' extension of time within which to perfect their title. At some time, which does not exactly appear, Mr. Howes died, and Mrs. Howes then became lukewarm, and standing upon the failure of title to this triangular piece, refused to go forward with the deal, and the same thereupon fell through. This may be said to be absolutely all the material evidence in this case.
Putting aside the question whether or not Mack fulfilled his agreement by offering the deed from Mr. and Mrs. Howes to McInerney, this case must be decided upon a vital proposition of law. Under the terms of sections
In such an action as this, as a matter of defense, defendant must show to the court by proper pleadings and competent *157
proof that the contract falls "within" the law permitting liquidated damages. This does not depend entirely upon the contract itself. Facts must be pleaded and proven from which the court can say as a matter of law that the contract for liquidated damages is valid because "from the nature of the case it would be impracticable or extremely difficult to fix the actual damage. The mere stipulations of the contract are insufficient for that purpose." (Deuninck v. West Gallatin Irr.Co.,
This is a simple case where a real estate broker was performing service in bringing persons together for the purpose of exchanging property. There is no allegation and no evidence tending to show that this was an unusual transaction. No reason appears why the commissions which Mack would have earned might not have been fixed in the contract itself, but there was no provision in the contract for the payment of commissions. The contract as to compensation is a most essential part of the contract of employment, and is always present in it either expressly or impliedly. When not expressed, it is an agreement to pay what the service is worth. (Ford v. Brown,
Richards, J., and Kerrigan, 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 August 16, 1917.