Brion v. Cahill

KERRIGAN, J.

This is an action to recover the sum of . one thousand dollars alleged to be due to plaintiff under a contract between one Sam Krummes and the defendant Patrick Cahill, embodying the terms of a proposed exchange of real estate. One of the provisions of this contract was that

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the defendant Patrick Cahill would pay to the plaintiff said amount for “services rendered”—the services referred to being evidently those rendered by the plaintiff in bringing about the proposed agreement of exchange. Judgment went in favor of plaintiff against Patrick Cahill and in favor of defendant Sumner Cahill against the plaintiff. Patrick Ca-hill appeals from that part of the judgment affecting him.

The facts material to a consideration of the appeal are briefly as follows: One Sam Krummes listed with the plaintiff a ranch situated near Lodi for sale or exchange. The latter brought this property to the attention of Patrick Ca-hill, who owned property in Oakland that he also was desirous of selling or exchanging. They together visited the Lodi property. Cahill expressed his willingness to exchange his Oakland property for it, whereupon Krummes and the plaintiff visited Oakland and inspected appellant’s property. At this point the appellant left the completion of the details and the entry into a contract of exchange to his son, the co-defendant. The latter went to the property at Lodi and there on behalf of the appellant, and as his attorney in fact, entered into the following contract—the plaintiff assisting in its preparation:

“This agreement witnesseth, that the undersigned, Sam Krummes, of Lodi, Calif., owner of the following described first piece of property (here follows description of property of Krummes), which (I) desire to exchange for the following second piece of property (here follows description of appellant’s property) . . .

“For One dollar in hand paid, and other adequate and valuable considerations I hereby authorize P. A. Brion to act as my agent in negotiating an exchange, and I agree that if he shall secure an acceptance of the proposition to exchange the above described property on the terms, that I will within ten days furnish a certificate of title or an abstract from a reliable abstract company, and a grant, bargain and sale deed conveying title to the property first above described; and will allow five days for the furnishing of a certificate of title or abstract and a deed conveying title to the second above described piece of property.