Thomas D. Campbell & Co. v. Holehan

WASTE, P. J.

Plaintiff brought this action to recover five thousand dollars, alleged to be due (less a small credit) as commissions, from defendant Holehan to Charles A. Turner Company, respondent, a five-twelfths interest in which had been assigned to the plaintiff. Because of the declination of Charles A. Turner Company to join as plaintiff, it was made a defendant. It subsequently filed a cross-complaint, concurring in the allegations of plaintiff’s complaint and joining in the prayer for relief against the defendant. Defendant denied the obligation and debt. Judgment was entered in favor of plaintiff and the cross-complainant for their respective shares of four thousand five hundred dollars, from which defendant appeals.

The Charles A. Turner Company attached to its cross-complaint the agreement out of which the alleged right to the commission arose. This contract, entered into between appellant Holehan and the respondent Charles A. Turner Company, recites that, in consideration of the consummation of an exchange of real estate, between Holehan and A. W. Longley, and confirming a verbal agreement theretofore made between the parties, it is agreed that the Charles A. Turner Company shall receive as commission for its services in connection with said exchange of properties between Holehan and A. W. Longley, the sum of five thousand dollars ($5,000), payable as thereinafter specified. The contract then provides that as Holehan is the owner of an option to purchase from Longley certain real estate (fully describing it, and setting forth the option, which by its terms expired on the fourteenth day of April, 1917), it is agreed that the Turner Company shall be, and is appointed and constituted, exclusive sales agent of Holehan to sell, during the existence of the option, any and all of the real property covered thereby, and that Holehan will pay to the Turner Company

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a net commission of five per cent on the selling price of all of the real estate so sold. Then follows a paragraph which appears to have been stricken out, and the contract concludes with the following provisions:

“It is further agreed that nothing herein contained shall be construed to cancel or invalidate the 'obligation of party of the first part hereto to pay to party of the second part the commission hereinbefore specified on the exchange of properties between party of the first part and A. W. Longley, and that the appointment of party of the second part as exclusive selling agent for the property herein described is provided as an alternative method of paying said commission to party of the second part;