75 P. 180 | Cal. | 1904
Plaintiff is the assignee of the Burnham Marsh Company (a corporation), real-estate brokers. *569 The action is for commissions due upon an alleged sale for F.A. Wickersham. Suit was commenced against Wickersham in his lifetime. He suffered default. Plaintiff afterwards consented that his default might be set aside. His death following, his executrix was substituted as defendant.
Wickersham had given to the Burnham Marsh Company a power of attorney to sell certain described property for the sum of thirty thousand dollars. The instrument provided: "I hereby agree to pay to said Burnham Marsh Company two and one half per cent commission on the amount of the sale if a purchaser is found by or through said Burnham Marsh Company, or myself, or any other person, during said period (of ten days), or if sold thereafter to any person having received information of said property through the said Burnham Marsh Co." The complaint pleaded, and the court found, that after the expiration of the ten days the Burnham Marsh Company, acting as the broker of Wickersham, negotiated a sale of the property, and sold it for him to one G.L. Page, for the sum of thirty thousand dollars, and received from Page a deposit upon the sale in the sum of one thousand dollars, and that this sale was on the sixth day of February, 1901, with all its terms and conditions as specified in the receipt given to and taken by Page, ratified in writing by Wickersham; and further, that Page first received information of the fact that the property was for sale by Wickersham through the Burnham Marsh Company. Thereafter, and without just cause or reason, Wickersham refused to consummate the sale, and instructed the Burnham Marsh Company to return to Page his deposit, which was accordingly done.
The evidence supports the findings so made. It appears that Wickersham was present at the execution of the contract between the Burnham Marsh Company and Page. That contract was in form an acknowledgment of the receipt of the sum of one thousand dollars "in part payment for purchase price, thirty thousand dollars, of the property known and described as follows," etc. It further appears that Wickersham evidenced his acceptance and approval of the sale by his signature upon the instrument.
It is contended by appellant, however, that the contract *570
between Wickersham and the Burnham Marsh Company, contemplated an actual and completed sale, and that, as Wickersham repudiated the contract before its full execution by the transfer of title, he was not bound to pay the commissions contemplated. But, the answer to this is two-fold. First, the contract which Wickersham approved was a sale of his property, and thus the literal terms of his contract with the Burnham Marsh Company had been complied with. It was a conditional sale, to be sure, but none the less it was a sale. Second, the law as to this contract is no different from the law as to brokers' contracts generally; that is to say, where the contract fixes the broker's right to remuneration upon his sale, if he shall produce a purchaser able and willing to buy, he has performed his part of the contract, and the owner's liability for his compensation or commission is complete, and cannot be avoided by any arbitrary or wanton refusal to consummate the sale. (Crane v. McCormick,
The Burnham Marsh Company is a corporation. Mr. Marsh, vice-president, and one of its principal stockholders, was allowed to testify to matters and facts in issue. It is contended that the evidence was improperly admitted, in violation of section 1880 of the Code of Civil Procedure, which provides that "The following persons cannot be witnesses; . . . Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted against an executor or administrator, upon a claim or demand against the estate of a deceased person, as to any matter or fact occurring before the death of such deceased person." At common law interest disqualified any person from being a witness. That rule has been modified by statute. In this state interest is no longer a disqualification, and the disqualifications are only such as the law imposes. (Code Civ. Proc., sec. 1879.) An examination of the authorities from other states will disclose that their decisions rest upon the wordings of their statutes, but that, generally, where interest in the litigation or its outcome has ceased to disqualify, officers and directors of corporations are not considered to be parties within the meaning of the law. For *571
example, the statute of Maryland (Maryland Public General Laws, art 35, sec. 2) limits the disability to the "party" to a cause of action or contract, and it is held that a salesman of a corporation who is also a director and stockholder is not a party within the meaning of the law so as to be incompetent to testify in an action by the company against the other party who is insane or dead. (Flach v. Gottschalk Co.,
To like effect is the statute of Illinois, which declares that *572
no party to any civil action, suit, or proceeding, or person directly interested in the event thereof, shall be allowed to testify under the given circumstances. Under this statute it is held that stockholders are interested within the meaning of the section, and are incompetent to testify against the representatives of the deceased party. (Albers Commission Co. v.Sessel,
Our own statute, it will be observed, is broader than any of these. It neither disqualifies parties to a contract, nor persons in interest, but only parties to the action (Code Civ. Proc., secs. 1879, 1880), and thus it is that in City Savings Bank v.Enos,
The examination of the witness Page undoubtedly discloses that he had an interest in the outcome of the litigation, but that fact did not bring his testimony within the inhibition of the law. It was not established that he was a person "in whose behalf the action was prosecuted," and his testimony was therefore properly admitted.
For the foregoing reasons the judgment and order appealed from are affirmed.
McFarland, J., and Lorigan, J., concurred.