Young v. Bank of California

NOURSE, P. J.

Plaintiff appeals from an order of non-suit to his action for commissions as a real estate broker. The order was granted on the ground that the cause of action fell within the statute of frauds. (Civ. Code, § 1624, subd. 5.)

The defendant Colusa Development Company owned the “0 Sullivan Orchard” located in Colusa County in which the defendant bank was beneficiary under a deed of trust. One Martin, who was not a licensed broker, learned that the land was for sale and informed the secretary of the corporation that he knew someone who might be interested. Martin then told plaintiff Young that one Di Napoli might be interested and Martin gave this information to Moores, an officer of the defendant bank. Martin brought Di Napoli (the subsequent buyer) to Moores and at the same time introduced him to plaintiff. Young asked for an exclusive contract in writing but was told that the bank never gave an exclusive contract, nor one in writing. He testified that Moores then assured him that his commission was safe and would be paid notwithstanding the absence of a written contract.

When Di Napoli met Moores he said he was interested but that he would insist on purchasing the property separately— $57,500 for the crop and $67,500 for the land, in order to comply with the federal regulations covering the payment of income taxes on capital gains as distinguished from income. Some time later he took his own broker to Colusa and completed the purchase without any aid from plaintiff. The regular commission was paid to the latter broker at the time of

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the sale. Plaintiff tried on several occasions to contact Di Napoli but the latter avoided him.

Appellant combats the bar of the statute of frauds on these two grounds: (1) that respondents are estopped to raise the bar, and (2) full performance by appellant and acceptance of the benefits by respondents. Appellant also contends that he should at least be compensated for the sale of the personalty as that did not come under the bar of the statute.

(1) An estoppel is an equitable defense when a party has deliberately led another to believe that a particular thing is true and to act upon such belief to his detriment. (Code Civ. Proc., § 1962, subd. 3.) There can be no estoppel when the party against whom the defense is invoked has plainly caused the other to believe that the “particular thing” relied on is not true and that he acts at his own risk. Here the undisputed evidence is that appellant was told by the agent of the bank that the owner would under no circumstances give him a written contract or an exclusive agency. The appellant relies on the agent’s statement: “There’s nobody else working on this property at the present time, and it seems to me you can go ahead. . . . you are safe enough, you are protected enough on it.” If this language is sufficient to invoke an estoppel in face of the statute of frauds then any oral contract for the sale of realty permits recovery of a commission. The definite purpose of these statutes is to require such contracts to be made in writing with a duly licensed broker and to hold that an owner is estopped to rely on the law merely because he has made an oral contract contrary to the law would simply abrogate the statute. The same question was before us in