Tamimi v. Bettencourt

STONE, J.

Defendants, husband and wife, jointly owned 50 acres of community property in Merced County. Plaintiff real estate broker had obtained listings of the property upon several occasions prior to obtaining an exclusive listing July 7,

[378]

1964. The “authorization to sell,” signed only by Mrs. Bettencourt, gave plaintiff an exclusive and irrevocable listing until October 7, 1964. It provided that if the property were sold by the owners themselves or through any other agent during the listing period, plaintiff broker would be entitled to a commission of 6 percent.

Approximately a month after Mrs. Bettencourt signed the listing, she and her husband sold the property to a third party, whereupon plaintiff brought this action against both husband and wife to recover a broker’s commission.

Plaintiff predicates the husband’s liability upon the theory of implied agency, asserting that the signature of either a husband or a wife to a real estate broker’s listing agreement for the sale of community real property is sufficient to bind both husband and wife. No authority is cited in support of the argument, and we find none. Rather, Civil Code section 1624 provides, in pertinent part: “The following contracts are 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:

i t

“5. An agreement authorizing or employing an agent or broker to purchase or sell real estate . . . for compensation or a commission. ’ ’

Section 2309 of the Civil Code provides: “An oral authorization is sufficient for any purpose, except that an authority to enter into a contract required by law to be in writing can only be given by an instrument in writing. ’ ’

The Supreme Court held, in

O’Banion

v.

Paradiso,

61 Cal.2d 559, at page 563 [39 Cal.Rptr. 370, 393 P.2d 682], that a wife’s express oral assent to her husband’s agreement to sell community real property does not meet the requirements of the statute of frauds. Although the