Spitler v. Avery

WARNE, J. pro tem.

*

Appellant appeals from the judgment entered upon an order sustaining a general demurrer to plaintiff’s fourth amended complaint without leave to amend in an action to recover a real estate broker’s commission.

The fourth amended complaint alleges that Russ C. Avery and Stella W. Avery are the owners of certain farm land and that the respondent, Russ C. Avery, employed appellant to act as real estate broker to sell said land, whereby appellant was to receive as a commission for his efforts 5 per cent of the gross price, as is more fully set forth in six letters, Exhibits “A” through “F,” which are attached to the complaint and made a part thereof. It is further alleged that appellant

[812]

performed Ms part of the agreement and obtained as purchasers of the real property John S. MeBee and Phylis MeBee, which purchase was to be in accordance with the terms of the employment contract, and that thereafter the respondent entered into an agreement directly with the McBees for the purchase and sale of the real property.

Appellant contends that the series of letters, Exhibits “A” through “F,” attached to the complaint, set forth an agreement by the respondent, Russ C. Avery, to hire appellant as a real estate broker and fully satisfy the provisions of section 1624, subdivision 5, of the Civil Code, which provides that an agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission is invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by his agent. The letters in question are all addressed to the appellant and were all signed by respondent, Russ C. Avery, except Exhibit “B.” In substance, they read as follows:

Exhibit “A”

“Sept 29th 1958 La Verne, Calif.

“In reply to your letter of the 24th I had planned to put my ranch on the market next summer. . . .

“As to the price, I have 19,500 in the ranch including leveling of 1500.00 plus a ful [sic] line of machinery. . . .

“I will pay com. on 19,500.00 with 4000 or 5000 down I have a second on it for about 2000 which I would pay off and take a first on the bal [balance] at 6% on a monthly pay’t.