Daft v. Enos

California Court of Appeal Nov 19, 1957 No. Civ. 17567Published

Before: Dooling

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Holding. An oral agreement between real estate brokers to share a commission is enforceable once the commission has been received by one of the brokers, regardless of the existence of a written contract with the principal. The court held that a judgment for a share of a commission not yet received is improper, but a declaratory judgment regarding future payments is appropriate.

Issues

Whether an oral agreement between brokers to share a commission is enforceable without a written contract between the brokers and the principal.
Whether a broker can be held liable for a share of a commission that has not yet been received from the principal.
Whether the failure of a trial judge to decide a case within 30 days under Code of Civil Procedure section 632 constitutes reversible error.

Disposition. Modified and affirmed

Quotations verified verbatim against the opinion

“In the latter case the oral contract to divide the commission is enforceable.”

“it was immaterial what sort of a contract, valid or otherwise, the first agent had with his principal, the owner of the property.”

“As to the $4,600 not yet received it cannot be said to constitute a fund in appellant’s hands.”

DOOLING, J.

Defendant appeals from a judgment awarding plaintiffs $4,800.

Appellant and respondents are all licensed real estate brokers. On April 19, 1955, respondent Daft received an oral listing to sell property belonging to two brothers named

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Renzel for $265,000. It was orally agreed that if Daft procured a buyer at that price he should receive a $10,000 commission. Daft in turn orally listed this property with respondent Gomes. Gomes held a written authorization to sell the property of LaBrucherie which adjoined the Renzel property.

Taking the evidence most favorable to the judgment Gomes and appellant had orally agreed to cooperate in the sale of the LaBrucherie property and to divide the commission equally in the event of its sale. Gomes testified that on December 4, 1955, Gomes and appellant met to discuss the sale of the LaBrucherie property. Appellant incidentally informed Gomes that he knew of a man who wished to invest about $200,000 in orchard property. The Renzel property was largely planted to orchard trees and Gomes told appellant that he had a property which might interest the prospective purchaser mentioned by appellant. Appellant, when he learned that Daft had listed this property with Gomes, asked Gomes: “Is this going to go a three-pay way?” and Gomes replied: “No . . . 50-50. Our office has to work with Mr. Daft’s office, and you’ll take care of the other 50.”

“Q. In other words, Mr. Enos was to get 50 percent? A. That’s right, 50 per cent.

“Q. And your office and Mr. Daft’s office would get the other 50 percent? A. That’s right.”

The Renzel property was shown to the prospect by appellant and he purchased it. The Renzels paid $5,000 to appellant in part payment of his commission for the sale and it was orally agreed that they would pay an additional $4,600. This $4,600 was held under writ of attachment levied by respondents upon the Renzels.

Appellant’s contention that the oral agreement to split the commission from the sale of the Renzel property with respondents was not proved is answered by the testimony of Gomes outlined above.

Daft v. Enos

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DOOLING, J.

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