California Auto Court Association v. Cohn

WHITE, P. J.

This appeal is from a judgment rendered by the trial court pursuant to an order sustaining a general and special demurrer of defendants Ostroff and Marks to plaintiff’s amended complaint without leave to amend. The complaint is for damages arising out of an alleged conspiracy

[147]

of defendants to deprive plaintiff corporation of a real estaté broker’s commission.

The complaint charged that plaintiff is a real estate broker and that in January, 1948,'at the resquest of defendant Jack Marks, plaintiff showed said Jack Marks a number of motels that plaintiff had listed for sale. On November 26, 1948, defendant Max Cohn employed plaintiff by written agreement whereby the latter was to sell the- Mohawk Motel, of which defendant Max Cohn was then the owner, for $78,000, plaintiff to receive a 5 per cent commission, or $3,900. Plaintiff immediately commenced advertising the motel for sale. December 4, 1948, plaintiff introduced defendant Marks to defendants Max Cohn and Mary Cohn, husband and wife, who, together with plaintiff’s agents, showed defendant Marks the Mohawk Motel. Defendant Marks stated that he was interested in the motel but before purchasing it, he wished to consult with his relatives and that he would contact plaintiff immediately if he and his relatives decided to buy it. The complaint further alleged that defendant Marks then consulted defendant Naomi Marks, his wife, and defendants Ostroff, his father-in-law and mother-in-law,' and that all of the defendants, knowing that plaintiff was entitled to a commission and in order “to unlawfully cheat, wrong and defraud plaintiff out of a commission of $3900.00,” entered into a conspiracy, and without the knowledge or consent of plaintiff, negotiated together and directly with each other to place the title of the Mohawk Motel in the names of defendants Ostroff at a price of $74,100 ($78,000 less the commission of $3,900 due plaintiff). That the defendants opened an escrow on December 8, 1948, wherein defendant Cohn sold the Mohawk Motel to defendants Marks and Ostroff, title being vested on December 16, 1948, in the names of defendants Ostroff in order to make it appear that they were the bona fide purchasers thereof, but that in reality defendants Ostroff hold it in trust for defendants Marks who are the true purchasers. That plaintiff continued to advertise the motel and to show it to prospective purchasers with the consent of the Cohns until the 16th of December, when plaintiff learned through sources other than the defendants of the alleged fraudulent transaction between them. That on December 16th defendants Marks commenced operating and managing the motel and referred to it as their own. That by reason of their acts, defendants unjusifiably interferred with plaintiff’s right to pursue its lawful business, effected a breach of the contract between plaintiff and defend