Frederick v. Curtright

SHINN, P. J.

Plaintiff brought this action against defendant Curtright and two corporations to recover the sum of $6,000 allegedly earned as a licensed business opportunity and securities broker for negotiating the sale of certain property of the defendants. To plaintiff’s fifth amended complaint a demurrer was sustained without leave to amend; judgment was entered for defendants and plaintiff appeals.

The complaint set out as exhibits three contracts. The first was dated May 8, 1953. It gave plaintiff the exclusive right to sell “stock as listed above, for the 60 day period

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from May 8, 1953 to July 8, 1953 aud within 30 days thereafter to parties with whom said Broker negotiated during said period, provided said Broker notifies me in writing of said negotiation.” It provided “If a sale or exchange is effected during their agency for the above described stock, I agree to pay them 10 per cent of the selling price, as commission for their services, and to furnish satisfactory title to said stock.” Typed on the face of the writing was “This Exclusive Extended to August 8, 1953.” Above was written “Price $60,000, Terms Cash.” The second agreement was dated September 30, 1953, and was in the form of an offer by Robert A. Rub to defendants, accepted by them, to purchase all stock of the two corporations owned by Curtright “plus all of the machinery and equipment used in connection with said businesses now owned by George A. Curtright. . . . ”

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The named price was $60,000 of which $25,000 was down payment, $5,000 to be paid within a year plus $1,000 per month or more until paid. It provided “This purchase and sale agreement is contingent upon the following conditions : 1. An agreement shall be drawn by Axelrod & Sevilla . . . Attorneys at Law, covering the transfer of stock and all assets, patents, beneficial business agreements now in use and owned by Customcraft Chinchilla Equipment Corporation and Customcraft Industries, Inc., and/or George A. Curtright. 2. This aforementioned agreement to be drawn by Stanley Sevilla is subject to acceptance by the purchasers on or before October 5, 1953. Furthermore, in the event that the aforementioned Agreement is not approved by the purchaser, it is expressly understood that the One Thousand Dollars ($1,000.00) listed in this agreement will be returned to the purchaser forthwith by the Lloyd A. Frederick Company.” Over the signatures of defendant corporations was the following: “I hereby agree to pay to Lloyd A. Frederick Company as commission ten percent (.10%) of the selling price for the sale of the above stock.” The third agreement was between defendants and Robert A. Rub and Saul Rub; it was signed by them and by defendants October 22, 1953. It was a contract for the sale of other property of the defendants, as hereinafter explained. It contained no provision for the payment of a commission to plaintiff. It was alleged in the earlier complaints, but not in the fifth amended complaint, that the sale was never consummated.