87 P. 1105 | Cal. Ct. App. | 1906
Judgment for defendant entered upon an order sustaining a demurrer, without leave to amend, from which plaintiff appeals.
It appears from the amended complaint that plaintiff, in November, 1901, held an exclusive agency for the sale of certain real property in the city of Los Angeles; that while such agency was in force plaintiff and defendant entered into a contract, by the terms of which plaintiff employed defendant in said business of real estate and in such other capacity as he might elect, and the second party agreed to devote his entire time and attention to the interests and business of said first party upon such business as said first party may direct, receiving as compensation therefor ten per cent commission *349 on all policies of insurance placed by him with said first party, and one-half of the net commissions received on all loans, rentals, real estate deals and other transactions brought to plaintiff by defendant. It was agreed that such contract of employment might be terminated by either party upon fifteen days' notice in writing, and that all deals pending at the time of the termination of said contract were to be closed and the proceeds divided under the contract. After the execution of this contract of employment, the agency of the plaintiff in relation to said tract first mentioned terminated, and plaintiff directed defendant to enter into negotiations with the owners for an extension of such exclusive agency in plaintiff's behalf. It is averred that defendant, instead of procuring an extension in behalf of plaintiff, took from the owners in his own name a contract of agency, by the terms of which defendant personally obtained the exclusive agency at a commission less than that originally agreed to be paid to plaintiff; that on August 10, 1902, defendant notified plaintiff of the termination of his contract of employment, and at the same time notified him that he had taken the exclusive agency of the tract in his own name, and thereafter proceeded to the sale of lots in said tract, some of which were by him sold after July, 1902, and before September 1st, the amount of which sales aggregated $3,300; and under the contract of defendant with the owners of the tract would have entitled him, at a commission of seven and one-half per cent, to the sum of $247.50, gross commission. There is no specific statement as to any other lots sold prior to the termination of employment.
The plaintiff demanded judgment that the contract of agency between the owners of the tract and defendant be decreed the property of the plaintiff, and that he have an accounting of the amount of commissions received by defendant, and a judgment for one-half the net amount thereof.
The theory upon which the plaintiff proceeds is, that he was entitled to the services of the defendant until fifteen days after notice of the termination of the employment, to wit, until August 26, 1902; and that the contract entered into by defendant before such date last mentioned, while in the name of Nevin, was the property of plaintiff.
While plaintiff in his complaint speaks of the various dates of the termination of the contract and of the service of notice *350 as being in the year 1904, the written notice itself is set out in the complaint, which bears the date of 1902, and taking the whole complaint together, it is clearly indicated that a typographical error has occurred, and that the transaction spoken of was intended to have been alleged in the year 1902.
The contract of employment between plaintiff and defendant was a personal one, and by its terms the relation of master and servant arose, under the definition of section 2009, Civil Code, rather than that of principal and agent, as defined by section
There is no question of damages involved in the action, in that it is nowhere averred in the complaint that defendant *351
could have procured a contract in behalf of plaintiff similar to the one taken in his own name; nor any damages on account of the nonperformance of the duty required by plaintiff of defendant. It is admitted, however, in the complaint that while the employment between plaintiff and defendant was in force defendant received, as agent of these tract owners, certain commissions, a part of which are specifically set forth as aggregating the sum of $247.50, with an additional averment that during that time he sold other lots and blocks, but plaintiff is unable to state the number of any such lots or blocks, or any of them, or the price for which the same, or any thereof, were sold, or the dates of the sales. Section
The judgment is reversed and cause remanded for further proceedings.
Gray, P. J., concurred.
Smith, J., concurred in the judgment. *352