Shanklin v. Hall
34 P. 636
Cal.
1893
Check Treatment
Garoutte, J.

This is an action to recover for services rendered in the exchange of certain real estate. Judgment went for plaintiff, a motion for a new trial was made and granted, and this appeal is prosecuted from the order granting a new trial. The case was tried by the court, and the new trial w*as granted upon the ground that “ the decision was against law.” The court made the following findings of fact: “ That on the seventeenth day of April, 1890, the plaintiff and defendant entered into an oral agreement, whereby it was agreed between them that plaintiff should use his knowledge and influence on behalf of, and render his services to, defendant to enable him to sell or exchange the lands mentioned in the amended complaint herein, for which plaintiff was to be paid by the defendant the sum of *28four hundred and fifty dollars as soon as the sale or exchange was effected through his, the plaintiff’s, knowledge, influence, or services rendered to him, the defendant.” The court further found that the plaintiff rendered his services as agreed, and that a transfer of the land was made by virtue of such services of plaintiff

The findings are directly in line with the allegations of the complaint, and the court concluded therefrom that plaintiff was entitled to recover. We think the conclusion of law arrived at by the court erroneous, and that an appeal from the judgment would have resulted in its reversal for that reason. But a motion for a new trial was granted, upon the ground that the decision was against law. It may be conceded from the authorities'in this state that “the decision is not against law,” when the conclusions of law are not supported by the findings, and that such an error of the court should be reviewed by a direct appeal from the judgment; yet if the order granting the new trial can be justified upon the grounds of error in law occurring during the progress of the trial, it should be affirmed. (Kauffman v. Maier, 94 Cal. 269.) If such were not the rule the moving party would be deprived of his rights to a new trial merely because the grounds upon which the order was made were not sound. Such an injustice is not tolerated by the courts.

2. Upon the trial the defendant objected to oral evidence of tiie express contract alleged in the complaint, on the ground that the sixth division of section 1624 of the Civil Code requires such contract, or some note or memorandum thereof, to be in writing and subscribed by the party to be charged, or by his agent; and, therefore, that oral testimony was incompetent. The court overruled the objection, and admitted testimony of an oral contract, to which defendant excepted. This matter was material, and as the decision of it, if erroneous, was prejudicial to the appellant, he is entitled to have the question considered, and the decision of it reviewed *29on this appeal; although the trial court expressly based the order granting the new trial on the distinctly different ground that “ the decision ivas against law.”

Among the contracts declared invalid if not in writing, etc., by section 1624 of the Civil Code is: “6. An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission.” The contract set out in the complaint is embraced in the findings of the court which we have quoted, and it appears to possess all the elements essential to bring it within the purview of the statute. It is not necessary, in the sense of the statute, that he should have been authorized to execute a conveyance of defendant’s real property. “The duty assumed by a broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made.” (Zeimer v. Antisell, 75 Cal. 509; Sibbald v. Bethlehem Iron Co., 83 N. Y. 382; 38 Am. Rep. 441.) And this is what plaintiff was employed to do, and precisely what he avers he did in performance of the agreement on his part. As additional authority for the application of the statute to this case, see McCarthy v. Loupe, 62 Cal. 299; Myres v. Surryhne, 67 Cal. 657. The case of Wilson v. Morton, 85 Cal. 598, is not in point. In that case the plaintiff was not employed to purchase or sell, or to assist in the purchase or sale of real estate. An objection to the evidence should have been sustained, and the ruling of the court in this regard was an error of law which may be reviewed upon this appeal.

Counsel for appellant contend that certain letters written by defendant to plaintiff long after the alleged performance of the contract by plaintiff contain memoranda sufficient to satisfy the statute. But those letters do not state the agreement alleged in the complaint, nor refer to any of the terms thereof. The complaint contains a count upon an implied contract to pay the reasonable value of the same services alleged in the special count; but this count seems to have been abandoned. *30Nothing is claimed under it here, and the judgment is evidently based upon the special count.

Let the order granting the new trial be affirmed.

Harrison, J., McFarland, J., De Haven, J., and Fitzgerald, J., concurred.