Collom v. Roos Bros.

RICHARDS, J.

This is an appeal from a judgment in favor of plaintiff for the sum of $844.10, and from an order denying the defendant’s motion for a new trial. The essential facts are these: The plaintiff in April, 1906, was a real estate broker in the employ of Madison & Burke, a real estate firm in San Francisco. After the earthquake and fire of that year, knowing that Mrs. B. McDermott was the owner of certain property on Fillmore Street which she desired to rent, and having learned that the defendant wished to lease the property, the plaintiff went to the home of Mrs. Mc-Dermott in Oakland on April 26, 1906, and obtained from her an option for a lease of the premises for three years, with a privilege of renewal, and at a rental of five hundred dollars a month, the option to expire on May 1st. Two days later he made an agreement with Boos Bros., by which he agreed to procure a lease of the premises for them, for three

[75]

years, with a privilege of renewal, at a rental of six hundred dollars per month, and by which Boos Bros, agreed to pay Collom “out of the monthly rental of $600 per month to be reserved in said lease, such amount as the owner of said premises may allow him, the same to be in full of all commissions and other services rendered and to be rendered by him as above.” Having this agreement Collom then went back to Mrs. McDermott, and obtained the execution by her of a lease of the property to Boos Bros., for the term of three years, with an option of renewal for seven years additional for the sum of six hundred dollars a month. He also obtained from Mrs. McDermott a letter addressed to Boos Bros., in which the latter were “authorized to pay on account to J. Prank Collom, his heirs or assigns, the sum of one hundred dollars per month during the full term of said lease and any renewal thereof for the period of seven years additional as therein provided.” This letter was presented to Boos Bros, at the time of the execution of the lease on their part, and their acceptance of its terms was evinced by the payment to Collom for a time thereafter of the monthly sum of one hundred dollars out of the rents specified in their lease.

Boos Bros, is, and prior to the date of the lease in question was, a corporation composed of Leon L. Boos, Bobert L. Boos, George II. Boos, Adolph Boos, and Achille Boos. Immediately after the earthquake and fire this corporation had taken a number of leases of real estate in San Francisco; but in the month of July, 1906, a new corporation was formed, known as Boos Bealty Company, which 'then took over and thereafter conducted separately the real estate branch of the business of Boos Bros., with which the two elder members of the former corporation did not wish to be further concerned. The stockholders of the new corporation were Leon L., Bobert L., and George H. Boos; and in it the two elder members of the Boos family, Adolph and Achille, had no interest. To this new corporation the older one of Boos Bros, assigned all of its interest in these several leases, including that made by Mrs. McDermott, and thereafter the Boos Bealty Company paid to Mrs. McDermott the portion of the rental to which she was entitled under the foregoing agreements, and also paid to the plaintiff Collom his share thereof in accordance with Mrs. McDermott’s direction. In the month of February, 1909, Boos Bros, notified Mrs. Me