Williams v. Kinsey

WHITE, J.

Defendant appeals from an adverse judgment.

It appears from the record that during the year 1941 plaintiff was a licensed real estate broker actively engaged in such business in the city of Los Angeles. Defendant, though not a licensed real estate broker, was an operator in real estate on a more or less large scale. He published and circulated among some 800 real estate brokers, including plaintiff, brochures in which he set forth his holdings on which he was open to proposals. Through these brochures defendant advertised that he dealt through brokers only and would pay a real estate commission to any one effecting a transaction involving one of his properties. Plaintiff was aware of such advertisements, and was also aware of the fact that Asa V. Call was the owner of a large estate property improved with a residence, in the city of Beverly Hills, which Mr. Call was interested in disposing of, and plaintiff felt he could be instrumental in bringing about a transaction whereby the defendant might exchange one of his properties for the above mentioned property of Mr. Call. In the fall of 1941 plaintiff took defendant to see the Call property and interested him in acquiring

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it. At defendant’s suggestion, plaintiff submitted to Mr. Call three of the former’s properties, but no deal was consummated. There is in the record substantial evidence that plaintiff first brought defendant and Asa Y. Call together in an effort to effectuate a transaction under the terms of which Mr. Call would exchange his residence for one of defendant’s properties and that defendant was to pay plaintiff a commission in the event such a transaction eventuated between defendant and Mr. Call. The record further reflects the fact that there was no agreement in writing calling for the payment of a commission, because, as testified by plaintiff, "it was useless to have a contract signed in advance for a commission where the deal was an exchange, because it was impossible to describe the transaction before a deal was actually worked out.”

It further appears that on or about December 1, 1941, plaintiff learned that defendant was acquiring certain property known as Beaeonsfield Manor, and he thereupon went to the defendant, inquiring of him if he was interested in exchanging Beaeonsfield Manor for Mr. Call’s property. Defendant informed plaintiff at that time that he had already opened negotiations with Mr. Call to effect an exchange thereof for Mr. Call’s property through defendant’s salaried employee, Mr. G-runwald. Defendant also told plaintiff that the latter was not to talk to Mr. Call, but was to "keep your hands off, I will pay your commission of $5,000.” According to plaintiff’s testimony, defendant advised him that he had earned his commission by bringing Mr. Call and the defendant together and that if defendant was successful in effecting a trade of any of his properties involving the Call residence he would see that respondent "was protected on any commission that he had coming from Mr. Call. ’ ’ There is also testimony that defendant further stated that when the negotiations got to the point where escrow instructions were to be signed, plaintiff would be notified and could go to the bank with the other parties where the escrow was to held, at which time proper escrow instructions would be worked out providing for the payment of the commission to which plaintiff was entitled from Mr. Call and from the defendant, to which plaintiff agreed.