Goodwin v. Glick

PATROSSO, J.

Plaintiff, a licensed real estate broker, instituted this action for the recovery of a commission in effecting a sale of defendant’s property, and recovered judgment for which defendant appeals. The determinative question is whether plaintiff is entitled to maintain the action. The facts upon which the answer to this question depends are undisputed and may be briefly stated.

[938]

Defendant executed a written agreement with Petros Realty Company, a licensed real estate broker, by the terms of which he appointed said company as his “sole and exclusive agent and grant said agent the exclusive right to sell” the property in question for the price and upon the terms and conditions therein set forth, which authority was stated to be irrevocable and to continue for a period of 60 days; defendant agreeing to pay “said agent” a commission of 5 per cent “as and for the compensation of said agent hereunder in the event of a sale or an exchange of said real property by said agent

or any other,

including myself, while this contract is in force . . . ” (Emphasis added.) The agreement contained this additional provision: “It is understood that said agent is a member of the San Pedro Realty Board, and it is further agreed that said agent shall refer this listing to said Board to be by it referred to such of its members as it may deem advisable and that such Board or its members may act as sub-agents in procuring or attempting to procure a purchaser in accordance with this agreement, and in the event a sale or exchange shall be made through said sub-agent, all of the terms of this agreement shall apply to such transaction.” Pursuant to said agreement, Petros Realty Company referred the listing to the realty board, which in turn referred it to plaintiff. The trial court found that thereafter the defendant sold the property to a purchaser procured by plaintiff. While defendant challenges this finding as unsupported by the evidence, we find it unnecessary to consider the contention in view of our conclusion that plaintiff is in no event entitled to maintain the action, as a consequence of which a reversal is required.

There can be no doubt but that under the terms of the listing agreement Petros Realty Company was authorized to refer the same to the realty board, and that the latter in turn was authorized to refer it to plaintiff who was one of its members, but the question presented is whether plaintiff, as a subagent, may maintain an action thereunder against the defendant or whether such action must be maintained by the agent named therein—Petros Realty Company.