Miller v. Webb

PIERCE, P. J.

This is an appeal from a judgment against defendant-appellant, Webb, (1) in the amount of $9,009.45, plus $953.93 interest for commissions owed to respondent, Miller, for his services in connection with certain sales of real estate; (2) for repossession of certain personal property.

The complaint here alleged that defendant and plaintiff, both licensed California real estate brokers, entered into an oral contract under which defendant hired plaintiff to solicit

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and obtain “listings,” i.e., authorizations by owners engaging defendant to find purchasers of their real, estate. It also alleged that, under the contract, plaintiff was employed to find purchasers of such listed real estate. As consideration for his services, plaintiff was to share in commissions received by defendant as follows: 20 per cent thereof on sales where the listings were obtained by plaintiff and an additional 30 per cent thereof on sales where plaintiff produced the ultimate purchaser. The complaint further alleged that plaintiff had entered into this employment, had obtained various listings, had produced various purchasers during the period of his employment, which had been terminated by defendant on December 14, 1959, that sales had resulted from these listings and purchasers had been produced from which defendant had received commissions, but that he had refused to pay to plaintiff his share of the commissions on certain of these sales.

A second count of the complaint alleged that plaintiff had loaned defendant a certain Todd eheckwriter which defendant refused to return. Plaintiff prayed for its delivery.

Defendant’s answer admitted the employment and, with two important exceptions, admitted that the terms of employment were as alleged in the complaint. The exceptions were: (1) that it was the understanding of the parties that the 20 per cent share in commissions would not apply to any sale of property “listed” through plaintiff’s efforts if the sale occurred after termination of plaintiff’s employment; (2) that plaintiff was not to receive 30 per cent of commissions on sales for purchasers who were merely “produced,” but only if plaintiff both produced the purchaser and actually consummated the sale himself. The answer further alleged that under the contract, thus construed, defendant owed plaintiff nothing for commissions but, on the contrary, plaintiff was indebted to defendant for advances made exceeding commissions earned. Return of these advances was prayed for in a cross-complaint.