Hudson v. Morgan & Peacock Properties Co.

DRAPER, J.

This is an action upon a claimed oral agreement for the sharing between brokers of a commission on sale of real estate. Judgment was entered upon jury verdict in favor of plaintiff. Defendants moved for judgment notwithstanding the verdict or, in the alternative, for new trial (Code Civ. Proc., § 629) and later moved to vacate the judgment. The motion for new trial was granted and those for judgment notwithstanding verdict and to vacate the judgment were denied. Defendants appeal from denial of the latter two motions and, by cross-appeal, plaintiff asked reversal of the order granting new trial. Defendants then appealed from the judgment.

The trial court believed that it had erred in an instruction upon estoppel, and this is the principal ground upon which the new trial was granted. Since the contract claimed by plaintiff is oral, recovery under it is dependent upon a showing that plaintiff and defendants are real estate brokers. Defendant Agostini was licensed as a salesman and not as a broker. Plaintiff, however, asserted that defendants had represented Agostini to be a broker and thus are estopped to rely upon his lack of such license. The court instructed the jury that “as a matter of law said defendants are estopped to deny” that

[330]

Agostini was a real estate broker. In granting new trial, the court decided that the fact issues involved in this instruction should have been left to the jury.

This conclusion is sound. The evidence was in conflict. Plaintiff conceded that Agostini had not expressly represented himself to be a “licensed real estate broker” but asserted that his representation that he was a “broker” and his conduct amounted to such a representation. Defendants offered testimony that Agostini was an insurance broker and had not represented himself as a broker of any other sort. They pointed to evidence that Agostini’s license as a real estate salesman hung on his office wall next to plaintiff’s own broker’s license. In this state of the record, it is clear that the court could not take from the jury the question whether a misrepresentation was made by Agostini and relied on by plaintiff. The fact issues involved in a claimed estoppel are for the trier of the facts.

(California Packing Corp.