Sutter v. Gamel

DEVINE, J.—

Judgment was entered for defendants following an order sustaining demurrer to plaintiff’s first amended complaint, referred to herein simply as the complaint.

Plaintiff was given leave to amend, but did not do so within the time allowed, and upon motion, the court entered judgment dismissing the action. From this judgment plaintiff appeals.

The complaint alleges that plaintiff was at all relevant times a licensed real estate broker, and that defendants employed him and authorized him to procure a contract to sell certain real estate to defendants as prospective purchasers. It alleges that the employment is evidenced by a deposit receipt, copy of which is made part of the complaint. The complaint further alleges that defendants orally promised to pay plaintiff $12,250 upon resale of the land by defendants or upon

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defendants’ subdividing the land. The complaint states that through the agency of plaintiff defendants did purchase the land and later sold it, but refused to pay any part of the $12,250 to plaintiff.

The complaint further alleges that in the agreement of sale between the sellers and defendants is contained the following paragraph: 1 ‘ 5. It is further agreed that no real estate or sales commission of any type shall be payable to any broker or salesman or any person whatever, by the Sellers, and that if any commission is due, Buyers shall bear such expense without credit. ’ ’

The demurrer is on the ground that the complaint does not state facts sufficient to constitute a cause of action in that the alleged cause appears to be barred by Civil Code section 1624, subdivision 5. Section 1624 provides that certain contracts are invalid unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged or his agent, and one class is defined in subdivision 5 as “ [a]n agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission. ’ ’ Defendants submitted a memorandum of points and authorities in support of the demurrer, in which they cited cases to the effect that in order to comply with the statute the contract must unequivocally show on its face the fact of employment of the broker, that is, it must show an authority to act or negotiate a sale of the property for the owner. (The cases of