Smith v. Wright

DRAPER, J.

This is an action by real estate brokers against other brokers and a property owner to recover commission claimed due. Demurrer of defendant brokers to the first amended complaint was sustained without leave to amend. Plaintiffs appeal from the judgment which followed.

The basic allegations are that defendant owner, by written

[792]

agreement, granted to defendant brokers the exclusive right to sell his ranch property for $560,000, 29 per cent down, balance “to be arranged,” and to pay commission of 10 per cent of the selling price “if the same were sold, or if a purchaser were procured or obtained” by defendant brokers or any other licensed broker. It is also alleged that defendant brokers agreed in writing to pay plaintiffs “one-third of the total commission” if plaintiffs produced such a buyer, that plaintiffs did produce a buyer, and that defendant owner refused to “discuss or negotiate the terms and conditions of sale” and refused to sell.

The amended complaint is in four counts. The first and fourth allege that defendant brokers are made defendants only because they decline to join as plaintiffs. These counts seek recovery of $56,000 from the owner, one-third to be paid to plaintiffs and two-thirds to defendant brokers. The second and third counts seek recovery only from defendant brokers upon the theory that they owe plaintiffs one-third of the commission which should have been paid, even though admittedly no payment has been made to them.

It is obvious that a broker’s right to commission is measured by the terms of his contract

(Ridgway

v.

Chase,

122 Cal.App.2d 840, 847 [265 P.2d 603]). Thus the sufficiency of counts 2 and 3 depends on whether they adequately allege that defendant brokers agreed to pay plaintiffs a determinable amount to be deemed earned even if no commission were ever paid, rather than to share with plaintiff a commission actually paid to defendant brokers. Since such an agreement between brokers would be rare, if not unique, we look to the detailed allegations to determine whether such a contract is alleged.