Galbavy v. Clevelin Realty Corp.

58 Cal.App.2d Supp. 903 (1943) O. J. GALBAVY, Respondent,

v.

CLEVELIN REALTY CORPORATION (a Corporation), Appellant.

California Court of Appeals.

Apr. 13, 1943. David B. Larimer for Appellant.

A.S. Goldman for Respondent.

SHAW, P. J.

Plaintiff's assignor, Landfield, was a real estate salesman, licensed to act as such under the defendant, Clevelin Realty Corporation, which was a licensed real estate broker, and this action is brought to recover compensation claimed to have been earned by Landfield while acting as such salesman. The defendant filed a cross-complaint against Landfield, alleging that he had been guilty of fraud in making some of the sales for which plaintiff claims compensation, and that defendant had been compelled by reason of such fraud to make settlements and adjustments with the purchasers, and had been damaged thereby. The same matter was pleaded in the answer as an offset to plaintiff's claim. The defendant appeals from a judgment against it on both complaint and cross-complaint.

The testimony given by defendant's treasurer, Schultz, is sufficient to support the implied finding that the sum of $561.17, awarded plaintiff by the judgment, was due to Landfield from defendant for commissions. But the evidence also shows without dispute that defendant is entitled to have $300 deducted from that amount for the price of land conveyed to Landfield by defendant. The agreement for the purchase of this land by Landfield from defendant is admitted by plaintiff, as is the receipt of the deed. The agreement provides that the price, $300, is to be a charge against Landfield's contingent commission account and to be retained by defendant from moneys received by it against that account.

[1] Plaintiff now objects to that deed on the ground that the authority of those who executed it for defendant is not shown. Schultz testified that a resolution conferring such authority had been passed by the board of directors. It is true the minute book and the original resolution were not produced, but a corporation minute book is not the only competent evidence to prove the passage of resolutions by its board of directors. Oral evidence is permissible for that purpose. (Boggs v. Lakeport etc. Assn., (1896) 111 Cal. 354, 357 [43 P. 1106]; Michaels v. Pacific S.W. Laundry, (1930) 104 Cal.App. 349, 362 [286 P. 165, 1071].) Oral proof of the contents of the resolution might have been subject to the best evidence rule, but no objection to the evidence on that [58 Cal.App.2d Supp. 906] ground appears. No evidence is disproof of the authority to execute the deed was given. Nothing appeared, therefore, to authorize the belated attempt to rescind this transaction because of non-performance by defendant, made by plaintiff rather than Landfield, at the hearing of the motion for a new trial, even if rescission could properly be had at that stage of the proceedings.