Bruner v. Van's Markets

Action to recover broker’s commission for services rendered in connection with a sale of real property. Defendant appeals from judgment in favor of plaintiff for $5,280.

Appellant (defendant) contends that plaintiff is not entitled to any commission since there was no writing signed by defendant unequivocally showing the employment of plaintiff as required by the statute of frauds.

In January, 1946, defendant, Van’s Markets, contemplated the construction of a warehouse, the estimated cost of which at that time was $350,000. On January 31,1946, the plaintiff, who was vice-president of Nelson Douglass and Company, wrote a letter, as such vice-president, in behalf of said company to defendant wherein that company offered to obtain for defendant a sale and lease-back agreement as a means of financing the construction of a warehouse. In that letter it was stated that the commission payable to Nelson Douglass and Company for its services “upon completion and signing of all papers incident hereto” should be 4 per cent of the total amount involved, but in no event should the compensation exceed $12,000. In a letter dated February 11, 1946, defendant accepted the offer of Nelson Douglass and Company

During the first part of January, 1947, or the latter part of December, 1946, Mr. Garrett, the treasurer of defendant, called plaintiff by telephone and said (according to plaintiff’s testimony) that “ [W]e find now that the building is going to considerably exceed the original estimated cost and our contracted figure for delivery, ’ ’ and that he would like for plaintiff to take it up with the officials of the insurance company and ascertain whether they would be willing to make some concession in view of the fact that the costs were exceeding considerably the price for which they were committed to deliver the property, and that the cost would be $100,000 more than the contract price of $400,000. Plaintiff then explained to Mr. Clark, the president of the insurance company, the situation in which defendant found itself, and asked him if he thought the insurance company would be willing to make some concessions. Mr. Clark replied that Ms company was willing to give the matter consideration, and he (Mr. Clark) suggested that rather than to try to establish a new figure at that time “it would be better if they deferred consideration of the

Plaintiff received said letter of September 6th and delivered it to the insurance company. The insurance company reappraised the property at $576,000. On November 17, 1947, the insurance company and defendant entered into an escrow, and they signed escrow instructions whereby the insurance company agreed to buy the warehouse and land for $576,000,

As above stated, appellant contends that the letter of September 6, 1947, did not constitute a written contract of employment of plaintiff as required by the statute of frauds. He argues that the letter fails to show unequivocally that plaintiff was employed; that the letter shows doubt and uncertainty as to the intention of the parties; and that the letter was not intended to be an employment contract or a memorandum of such a contract. The letter referred to the first resale agreement and to the circumstances under which that agreement was written. Then the letter stated the financial problem with which defendant was confronted, at the time the letter was written, by reason of the fact that the cost of the warehouse was considerably more than the original estimate. Reference was made therein to the increased value of defendant’s assets, and it was then stated that the defendant felt that by reason of those changes in its net worth it was in a position to ask the insurance company for an adjustment in the terms of the first sales agreement. It was also stated therein that defendant wanted the sales price of $400,000 (which the insurance company had already agreed to pay) increased to the actual cost of the building as shown by the attached schedule (which was $621,738.86). As above stated, defendant also said therein, in substance, that it wished that plaintiff would ascertain whether the insurance company would be willing to consider a reappraisal of the property in the light of the new developments and to consider a change in the sales price in view of the actual cost of the project. Also as above stated, defendant asked the plaintiff, in that letter, to take the matter up with the insurance company, and then the defendant said therein that as soon as plaintiff was able to determine the insurance company’s position in the two matters the defendant would appreciate talking further with plaintiff.

It therefore appears from the letter (1) that defendant advised plaintiff concerning defendant’s financial problem, which was that the warehouse had cost about $200,000 more than the original estimate of $400,000 for which it had agreed to sell the property to the insurance company; (2) that de

Appellant also contends that since it (Van’s Markets) had paid Nelson Douglass and Company $12,000 in full payment for all services rendered or to be rendered, and since plaintiff was vice-president of that company when it agreed that in no event should the commission exceed $12,000, and since plaintiff had rendered the prior services on behalf of that company, it was not intended that any commission should be paid for plaintiff’s services in the subsequent transaction regarding the increase in the selling price of the property. It also argues that a further indication that no commission was intended on the subsequent transaction is that the schedule of costs enclosed in the letter of September 6th (which plaintiff presented to the insurance company) did not include an item for additional commission. As stated above, there was a dissolution of Nelson Douglas and Company in September, 1946. Plaintiff testified that he discussed the dissolution of that company with Mr. Garrett at ‘ ‘ one of the very early conversations” with Mr. Garrett after the telephone call from Mr. Garrett in which Mr. Garrett asked him “to do the new deal.” Mr. Garrett testified that “some time later than this first con

Appellant also contends that the evidence does not support the finding that defendant “agreed orally with plaintiff to pay him the reasonable value of his services under his written contract of employment.” There was testimony, as above shown, that about the first of January, 1947, the treasurer of defendant told plaintiff that the financial problem confronting defendant was a very serious matter and the defendant did not expect him to work for nothing. Thereafter during a period of approximately 10 months plaintiff had' various conversations with officers of the insurance company and said treasurer regarding the resale of the property at an increased price. In November, 1947, the insurance company bought the property for $576,000 and defendant was released from its prior contract to sell the property to the same insurance company for $400,000. Defendant accepted the benefits of plaintiff’s services. Said finding that there was an oral agreement to pay plaintiff the reasonable value of his services is supported by the evidence.

Appellant also contends that plaintiff is estopped to claim a commission because he did not expressly include an agreement for a commission in the letter of September 6th, because an additional commission was not included in the schedule of costs which was enclosed in that letter, and because plaintiff did not ask for a commission before the increase in

By reason of the above conclusions, it is not necessary to determine other contentions of appellant.

The judgment is affirmed.

Shinn, P. J., and Vallée, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied May 24, 1951.