Muncy v. Thompson

147 P. 1178 | Cal. Ct. App. | 1915

Action by a real estate broker to recover commissions for negotiating a sale by exchange of defendant's real estate.

Defendant appeals from a judgment entered in favor of plaintiff.

It appears that defendant, by written instrument, expressed a desire to make an exchange of certain real estate therein described and owned by him for certain property owned by one L. H. Webb, the terms and conditions of the exchange proposed being set forth in said writing, which further contained the following provisions:

"R. E. Muncy is hereby authorized to act as my agent in negotiating an exchange, and I agree that if I shall secure an acceptance of the proposition to exchange the above described property on the above terms. . . . And it is further agreed with said R. E. Muncy that when he has secured an acceptance of the proposition to exchange the above described property on the above terms, will then pay the sum of commissions as per verbal agreement, __________ dollars, as commissions for such services. . . . (Signed) Wm. Thompson."

Plaintiff procured Webb's acceptance and, with some slight modification of the contract made by the parties thereto, the exchange was consummated.

The written instrument construed according to the plain import of its language, clearly shows that defendant authorized plaintiff to negotiate the exchange. The authorization being in writing, the fact that it did not specify the commission to be paid for the service rendered did not subject it to the objection that it was void under the provisions of subdivision 6, section 1624 of the Civil Code. In the absence of any agreement as to commission, the agent, if authorized in writing to negotiate a sale of real estate, is entitled to a reasonable compensation for his services. Here it was agreed that plaintiff should receive the commission as per verbal agreement, which verbal agreement was clearly and properly established by parol evidence.

In his answer defendant alleged that his signature to the instrument was procured by means of fraud and misrepresentations of plaintiff. The court upon abundant evidence found these allegations to be untrue; indeed, the only evidence in support of the allegations is that of defendant, who testified that he signed the instrument when he did not have his eyeglasses with him and did not know whether or not it contained the provision as to the payment of commissions. The document was presented to him by plaintiff who, so far as shown, made no representations whatever as to its contents, and defendant makes no claim that he was unable to read without glasses. At most, his evidence merely shows his own negligence in signing a contract without first acquainting himself with its terms and conditions. Such fact does not entitle him to set aside a contract upon the grounds of fraud and misrepresentation.

The appeal is wholly without merit, and the judgment is, therefore, affirmed.

Conrey, P. J., and James, J., concurred.