60 Cal. 555 | Cal. | 1882
Lead Opinion
This is an appeal by the plaintiff from a judgment entered in favor of the defendant upon the following findings of fact:
“1. On or about the thirtieth day of June, 1878, the plaintiff and the defendant entered into a contract in writing, by which the defendant appointed the plaintiff his agent in the sale of a certain mining claim in the State of Nevada, which contract was to remain in force sixty days from the first*564 day of July, 1878, with the privilege to the plaintiff to renew it for thirty days thereafter.
“2. By the terms of said contract, if plaintiff effected a sale of said mining claim within the time specified, for more than $50,000, he was to receive as compensation for his services as agent in effecting said sale one half of the amount realized thereby, over and above said sum of $50,000.
“3. Plaintiff was not to receive any compensation for his services, nor were any expenses incurred in the transaction to be chargeable against defendant, unless a sale was effected by plaintiff under said written contract.
“4. About the twentieth of August, 1878, plaintiff entered into negotiations with one H. A. Hedger for the sale to him of said property for the sum of $75,000 in United States gold coin.
“5. These negotiations were carried on between the said parties until about the twenty-seventh day of August, 1878, when they were terminated by a notification to plaintiff from Hedger, that he declined to purchase the property.
“6. The plaintiff did not effect any sale of said property, nor did he procure a purchaser able and willing to purchase the same.”
It is claimed by the appellant that the last finding and the last clause of the finding next preceding the last are contrary to the evidence. There is positive evidence of the pecuniary ability of Hedger to purchase the property, which is not contradicted, so that there is no conflict of evidence upon that question.
His willingness to purchase the property is evidenced by an instrument in writing between him and the plaintiff, in which he agrees to purchase it at the price and on the terms upon which the plaintiff was authorized by the defendant to sell it. In that agreement there is a stipulation that Hedger might have twenty days from its date in which to examine and pass upon the title to the property.
The agreement between the plaintiff and defendant was, by its terms, to remain in force for a period of sixty days from its date, and had, at the date of the agreement between the plaintiff and Hedger, more than twenty days to run.
How it appears further by. the evidence that Hedger insisted
Judgment and order denying a new trial reversed.
Mobbison,. 0. J., McKiktstby, Boss, Thobjsttok, JJ.. concurred.
Hybick, J. dissented.
Dissenting Opinion
It is familiar law that a real estate broker is not entitled to commissions for making a sale of real estate for his principal, unless he strictly performs the services required of him according to the authority conferred upon him.
In the case in hand, the defendant, claiming to have been “ seised at law and in equity” of a mining claim in the State of Nevada, authorized the plaintiff by an instrument in writing, to sell the claim at any time within sixty days from the first day of July, 1878, for such a sum of money as would net him sixty-five thousand dollars; and any surplus which might be realized from the sale, he agreed to divide equally between the plaintiff and himself, and to pay out of his share of the surplus whatever expenses might -be.incurred in making the sale.
Hedger was able to pay. Negatively it'appears that there was no fault in the title to the property; that Hedger took no steps to satisfy himself about it, and that he never demanded of the defendant to consummate the alleged purchase by a conveyance of the title. It also appears, affirmatively, that the defendant refused to sign the agreement in writing between Hedger and the plaintiff, and that the former, on August 27, 1878, notified the latter, that he considered himself released from all obligation to purchase.
There was, therefore, no actual sale of the property. Hedger was not a purchaser ready and willing to buy, nor did the defendant refuse to consummate a purchase by the conveyance of his title; he did refuse to sign the agreement in writing between Hedger and the plaintiff: but he was not bound by his contract with the plaintiff to sign any agreement in writing which the latter might make with a person to whom he offered the property for sale; and in refusing to do what he was not bound by his contract to do, the defendant was not at fault.
As an agent, the plaintiff could only bind his principal within the scope of his authority. It was not within the scope of his authority to make a conditional or contingent sale. Such a purchase, the defendant was not bound to accept. He had the right to determine for himself whether the offer to purchase upon such a contingency, as was agreed to by his agent, was made in good faith, and to refuse or accept the offer. And Hedger was not bound to purchase if the contingency which he presented, did not happen.
As, therefore, the plaintiff’s claim to compensation was, by his own unauthorized act, made dependent upon an act which his principal was not bound to perform, no recovery can be
