Davinroy v. Thompson

California Court of Appeal Mar 24, 1959 No. Civ. 17993Published

Before: Kaufman, Dooling

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Holding. The court held that a written agreement identifying a broker is sufficient to satisfy the Statute of Frauds even if it omits the commission amount, and that a wife may be bound by her husband's actions as her agent in a real estate transaction.

Issues

Whether a written exchange agreement sufficiently satisfied the Statute of Frauds regarding a broker's commission.
Whether oral evidence was admissible to establish the amount of a broker's commission.
Whether a wife was bound by a real estate agreement signed only by her husband under an agency theory.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The statute does not require that the writing contain all of the terms of employment. It is sufficient if the fact of employment is certain, and the contract need not state the amount of compensation to be paid.”

“Where the memorandum authorizing a broker to sell property required by the Statute of Frauds is established, an agreement for and the amount of a commission may be shown by parol.”

“A husband and wife may act as agent for one another.”

Opinion

169 Cal.App.2d 63 (1959) 336 P.2d 1028 A.T. DAVINROY, Respondent,

W.C. THOMPSON et al., Appellants.

Docket No. 17993. Court of Appeals of California, First District, Division Two.

March 24, 1959. [64] Leon H. Sorell, Philander Brooks Beadle and John T. Tully for Appellants.

James D. Lucey for Respondent.

KAUFMAN, P.J.

In this action for recovery of a real estate broker's commission earned in negotiating an exchange of real estate, defendants appeal from a judgment in favor of the plaintiff broker. The trial court found that the defendants entered into a written agreement of exchange with Charles W. Beeler about September 1, 1954; that this agreement was not rescinded; that pursuant to this agreement, the exchanges were completed and consummated through the City Title Insurance Company, acting as escrow; that plaintiff performed services for the defendants as a real estate broker at their written request and authorization in connection with the said agreement and consummation of the exchange; that the reasonable and agreed value of plaintiff's services was $30,000 which the defendants promised to pay, and of which amount defendants have paid $1,710.

Defendants challenge the sufficiency of the evidence to support the findings and the judgment, contending: that the written agreements provide that no broker's commission was to be paid to the plaintiff; that testimony to establish an oral agreement was inadmissible as it was barred by the statute of frauds (Civ. Code, § 1624); that therefore, the finding that there was an agreement to pay a commission is unsupported by the evidence, and that neither of the writings was signed by defendant Opal Fern Thompson.

The exchange agreement dated September 1, 1954, reads in part as follows: "The real estate brokers in this transaction are recognized as A.T. DAVINROY, representing parties of the first part, and HUBERT RICE, representing party of the second part. Commissions are to be settled and paid for outside of the escrow." The escrow instructions dated September 10, 1954, provide in part as follows: "3. That no agent's or brokers' commission or other compensation are due or payable

Davinroy v. Thompson

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Opinion

KAUFMAN, P.J.

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Related research

DOOLING, J.

Opinion — Kaufman

Concurrence — Dooling

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