Frank Meline Co. v. Kleinberger

This is an appeal by plaintiff from a judgment of dismissal entered after a nonsuit had been granted, in an action brought to recover real estate commissions.

The material provisions of the contract out of which the controversy grew are as follows:

“Los Angeles, California, Feb. 24, 1922.

“I hereby appoint Frank Meline Company sole agent for the exclusive sale of the here (i)n described property, upon the terms stated; and in case the said property is sold by me or any agent, or any agent of said company sends or introduces to me a customer who buys it, I agree to pay said company five (5) per cent of such a price as I may accept. In consideration of Frank Meline Company using their efforts to sell said property, this agency shall extend for a period of 30 days from date hereof and until such further time as I shall notify said Frank Meline Company in writing of the termination of this agency. . . .

“ (Signed) Mrs. L. Kleinberger.”

Later a supplementary clause was added, reading: “We hereby extend the exclusive sale until April 5, 1922 (Inc.). Mrs. Kleinberger.” The sale price was fixed at $45,000,

! Appellant’s cause of action as set forth in the complaint was based upon the theory that within the period of the exclusive agency respondent sold the property throtigh another agent and that therefore, under the terms of the contract, appellant, was entitled to a commission on that sale. The complaint alleges in this regard that “up until the 5th day of April, 1922, plaintiff was diligently engaged in the effort to sell the property, and did have responsible prospective buyers negotiating for the purchase of the same when the defendant herself made a sale of said property through an agent, by name James J. Donahue, for a price plaintiff . . . alleges to be $55,000.00, and defendant thereupon attempted to repudiate said agency contract and claimed that the same had terminated.” Defendant, answering, denied any attempted repudiation of the contract, alleged that the same expired on April 5, 1922, and that on the day following, April 6, 1922, the property was sold, together with certain furniture, through the said Donahue, as agent, for the sum of $55,000. At the trial, as here, the parties presented the additional issue of whether or not within the life of the agency appellant performed the contract by procuring a purchaser who was ready, able, and willing to buy the property on respondent’s terms.

The substance, of the evidence offered in support of appellant’s case was that after obtaining the agency contract, appellant advertised the property for sale and endeavored to interest several buyers. When the thirty-day period mentioned in the contract was about to expire, appellant sought a twenty-day extension, which respondent refused to give, but consented to an extension to and including April 5, 1922. Prior to that date appellant had procured a prospective buyer named Oesterreich, with whom Frank Meline, the principal owner of the appellant corporation, had been associated in other business transactions. On the afternoon of April 5th one of appellant’s salesmen drove Oesterreich and his wife to the premises to be sold, where they met and talked with respondent. Oesterreich offered respondent $43,000 for the property, which offer respondent refused to accept; thereupon Oesterreich, his wife and the salesman retired to their automobile, which was standing at

[1] In regard to the first proposition, it seems to be well settled that in the absence of any specific agreement to tlie contrary, a broker employed to sell real estate has earned his commission when, within the life of his contract or any extension thereof, he has produced a person who is ready, able, and willing to purchase the property on terms satisfactory to the seller, and has obtained a binding' and valid contract for a sale on terms proposed by the seller, or has brought the seller and buyer together and thus enabled them to enter into a contract of sale, or-has produced such a purchaser who has verbally accepted the seller’s terms and offered to enter into a written contract embodying the said terms and binding upon both parties (Twogood v. Monnette, 191 Cal. 103 [ 215 Pac. 542 ]); but unless the intending purchaser has entered into such binding contract or has offered to the vendor and not merely to the broker, to make such an agreement, the broker has not earned his commissions. (Hicks v. Christeson, 174 Cal. 712 [ 164 Pac. 395 ].)

[2] Appellant concedes that no written agreement was ever entered into by Oesterreich for the purchase of the property, and it was neither alleged in the complaint nor proved at the trial that he was a ready and willing purchaser within the meaning of the rule just 'stated, the evidence in this respect showing without conflict that on the afternoon of April 5th, the only occasion on which the parties were brought together, Oesterreich declined to buy the property on respondent’s terms. The fact that later Oesterreich instructed Meline to buy the property providing the latter considered it a good buy, and that accordingly Meline went to respondent’s house intending to “close the deal” and to pay a deposit—which was not authorized by the agency contract—was not sufficient to meet the requirements of the law, the final offer of Oesterreich, if it may be called such, being made merely to the broker and not to the vendor. (Hicks v. Christeson, supra.) We conclude, therefore,- that as to the first point mentioned, the ruling of the trial court must be sustained.

[5] Respondent contends that a sale was not established because the evidence failed to show that on or before April 5th there was a conveyance of title or that any written agreement of sale was entered into between respondent and Hart, and that therefore, in view of the statute of frauds (Code Civ. Proc., secs. 1971 and 1973) the oral declarations of respondent to the effect that the property had been sold were insufficient in law to prove that fact. As to the meaning of the word “sold” as it is employed in said contract, it should be kept in mind that this controversy does not involve the relationship of vendor and vendee, and there

[6] The evidence in the case at bar is to the effect that about 6:30 o’clock on the evening of April 5th respondent declared to appellant’s representative that at 5 minutes past 6 on that same evening she sold the property to Tlart through Donahue, who was admittedly a real estate broker, and at that time she accepted Hart’s check. She further stated “they were here before 6 but I made them wait until 6:05. ’ ’ These declarations were proved by three witnesses, whose testimony on this point was not conflicting nor was it in any manner contradicted. The only fair inference to be drawn from this evidence is that on the evening in question respondent accepted the purchaser pro

[7] The question of the amount of weight that should be attached to the evidence of the oral declarations of respondent is immaterial. A motion for nonsuit presents for determination a question of law, and if there is any substantial evidence which, with the aid of legitimate inferences favorable to plaintiff, tends to establish the averments of the complaint, the motion for nonsuit should be denied.

The judgment is reversed.

Tyler, P. J., and Cashin, J., concurred.