Mull v. Hunter

STONE, J.

Plaintiff real estate broker appeals from a judgment entered pursuant to an order sustaining demurrer to her complaint for damages, without leave to amend. She filed an action for an amount equal to the real estate commission for the sale of estate property.

The parcel of real property involved was part of the estate of George L. Browning, deceased. It had been on the market for some time and the administrator, defendant Hunter, had discussed a sale with defendants Ewings, the subsequent purchasers, but they had not been able to agree upon the price. Dr. Ewing was undecided whether to purchase the estate property or to go ahead with other plans he had made for real estate development. During this period of impasse, plaintiff, a duly licensed real estate broker who was well acquainted with all the parties involved, called defendant Sapunor, the attorney for the administrator, and told him she wanted a listing of the property. Sapunor told her another real estate firm was to be given the listing but if she would give him the names of her prospects, he would protect her as to them when the property was listed. She gave him three names, including Ewings’. About a month later plaintiff met Dr. Ewing at the property and discussed a sale with him, but no agreement was reached and she continued to work on the sale. Thereafter Dr. Ewing bought the property from the administrator, and upon confirmation of the sale no real estate commission was re

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quested or allowed. Plaintiff then filed a petition in probate claiming a commission; a hearing was held, testimony was taken, and the petition was denied. The court found that plaintiff had no written listing agreement, authorization to sell, agent or broker’s agreement, nor memorandum in writing, as required by law.

Plaintiff abandoned her claim against the estate and filed this action against Dr. Hunter, the administrator, in his individual capacity, against defendant Sapunor, the attorney for the administrator, as an individual, and against the purchasers, Ewings. The complaint is framed in two causes of action. Count one alleges an oral contract with the administrator, the attorney for the estate, and the buyers, to sell the estate property. Count two repleads the allegations of count one and alleges a common count for services rendered. The court sustained a demurrer as to each count as to all defendants, wdthout leave to amend, and a judgment was entered accordingly. On this appeal, plaintiff concedes the demurrer was properly sustained, but contends she should have been given leave to amend.