Steinberg v. Buchman

SHINN, J.

Appeal by plaintiff from a judgment on a directed verdict for defendant. It was alleged in the complaint that plaintiff, a real estate broker, had been engaged by one Epstein to find a purchaser for certain real estate and personal property belonging to Epstein and was to receive a commission of 5 per cent of the first $115,000 of the selling price and 50 per cent of any additional sum received for the property. It was alleged that plaintiff procured defendant as a purchaser, that defendant entered into a written agreement with Epstein to purchase the property for $125,000, and that defendant repudiated the agreement and refused to conclude the purchase. The prayer of the complaint was for damages in the sum of $10,750. The answer admitted the making of the contract of purchase, denied that defendant had repudiated it, and alleged that he had rescinded the contract for good cause.

Plaintiff offered in evidence an agreement by which Epstein appointed him exclusive agent to find a purchaser for the property. It was excluded from evidence upon defendant’s

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objection. It was not offered for identification and is not contained in the record. We may assume, as counsel do, that it conformed to the agreement alleged in the complaint, which described the property to be sold as “a building, bowling alley, cafe, cocktail room, licenses, good will, fixtures, equipment, and merchandise. ’ ’ The agreement of sale, hereinafter referred to, shows that the land also was included. The complaint alleged that under the employment agreement, “said Morris Epstein agreed to pay to the Plaintiff as commission for his securing a purchaser for said property five per cent (5%) of $115,000.00, plus 50% of all the amounts received by Epstein in excess of $115,000 for the sale of the aforementioned property.”

The agreement between Epstein and defendant was in the form of escrow instructions, copy of which was attached to defendant’s answer, and the agreement as pleaded was received in evidence. Defendant moved for a directed verdict upon the ground that plaintiff had not proved any agreement in writing subscribed by defendant, employing plaintiff to purchase the property for compensation or a commission, as required by section 1624(5) of the Civil Code, and a direction to the jury to return a verdict for defendant followed the granting of that motion.