Deovletian v. Whitney (1921) · DecisionDepot

Deovletian v. Whitney

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Nov 4, 1921 No. Civ. No. 3903.Published

Before: Langdon

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Holding. The court held that the plaintiffs were not entitled to a commission because they failed to perform the contractual requirements to "effect a deal," as they did not bring the buyer and seller together or secure a binding preliminary agreement.

Issues

Whether the plaintiffs earned a commission under their contract with the defendants for the sale of real estate.
Whether the plaintiffs' limited involvement in the transaction constituted "effecting a deal" under the terms of their employment contract.

Disposition. reversed

Quotations verified verbatim against the opinion

“We are of the opinion that, under their contracts, the plaintiffs have not earned the commission they seek to recover.”

“We think it clearly appears from all the testimony in the record—indeed, it is apparent from the testimony of plaintiffs themselves—that they did not effect any sale”

Synopsis

APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge. Reversed.

The facts are stated in the opinion of the court.

LANGDON, P. J.

This is an appeal by the defendants from a judgment for two thousand dollars against them, in an action to recover commissions upon the sale of real

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estate. Defendants were in the real estate business and plaintiffs were working for them under a contract which, in so far as it is relevant here, reads as follows:

“Pursuant to our conversation of even date, beg to advise that during the period that you continue to carry on the general real estate business in the connection with us, as our representative, we will pay the following commission : (1) On property listed through this office and sold by yourself, we will pay you 50 per cent of the gross commission derived from the sale. (4) On property listed by this office and sold by this office without any effort on your part you will receive no commission. (5) We agree to give you as much assistance as possible in closing deals that may be effected by you, and any assistance which we may render you in this manner will not affect the scale of commission. We will also expect you to render such assistance to this company as you conveniently can in the matter of listing any property from clients who shall come into this office for the purpose of listing property. It being understood, however, that such listing shall be considered as having been listed by this company. It is also understood that any property which you may list outside of this office where this company shall have been instrumental in aiding you to secure said listing, said property shall be considered as having been listed by this company.

“(6) Customers coming into this office for the purpose of purchasing property, or, in fact, any customer which you may secure through this office, shall be considered as belonging to this office, and on sales made by you to them we will pay you 50 per cent of the gross commission received regardless of whom the property shall have been listed by.

“(9) In the event that you fail to close any individual deal and give the deal up as lost that one of the firm, or in fact any one representing this firm pick up the deal then, and finally close same you are entitled to no commission whatever unless it be your exclusive listing which then you will be entitled to 15 per cent only.”

Related research

February 24, 1920, Kaloust Nazarian and Ms son entered defendants’ office and asked about land listed there for sale. One of the salesmen in the office, Sam Matthews, took out some listing cards and attempted to interest Nazarian in the property there offered. Nazarian found none of these attractive. Matthews then introduced Nazarian to one of the plaintiffs,- B. P. Deovletian, who brought forward another box of listing cards, on one of which the Bolitho property was listed. Nazarian said he knew something of this property through some other source, but had never seen it and desired to do so; that he did not have time to go out to see the property that day, as it was already late in the day, but stated that he would come in at another time and go out to see the property. In accordance with this understanding, he arrived at the office of the defendants on Saturday afternoon, February 28, 1920. There he met the plaintiff,' B. P. Deovletian, and asked to be taken to see theBolitho property. Said plaintiff, however, stated that he had an engagement to take another customer out and could not go with Mr. Nazarian. Because of this fact, he introduced Nazarian to the defendant Whitney, explaining that he, Deovletian, could not take Nazarian out to see the property. Thereupon Mr. Whitney said, he would take him out, which he did. Whitney introduced Nazarian to the owner of the property and, after a personal examination and some negotiations, Nazarian deposited one thousand dollars upon- the contract price of the property and signed a preliminary agreement for the purchase of the same. As to the details involved in the execution of the final contract, it appears that most of the complications which arose as to the acceptance of certain securities as part of the first installment payment for the property' and disposing of certain property owned by Nazarian to enable him to meet the first payment of thirty-five thousand dollars were met and solved by Mr. Whitney. Mr. Bolitho, the owner of the land, stated that he had never known the plaintiffs in connection with the transaction; that Mr. Whitney had conducted all the negotiations and closed the transaction, except for the part which his attorneys had taken in the matter. According to the testimony of B. P. Deovletian, his connection with the transaction was as herein stated, and he does not claim to have had any further part in it

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Synopsis

LANGDON, P. J.

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