Jennings v. Jordan

[336]

KERRIGAN, J.

This action was 'brought to recover $1,825 alleged to have been earned- by Herman Eppinger, Jr., the assignor o-f the plaintiff, as a commission upon a proposed exchange of certain lands-. Judgment went for defendant, and the plaintiff prosecutes- this appeal therefrom -and from an order denying his motion for a new trial.

On the second day of May, 1914, John Fletcher and the defendant entered into a written. contract, under the terms of which Fletcher was to convey to the defendant some 333 acres of land, to be chosen hy the defendant from a certain described larger tract of 436 acres in Tuba County, in exchange for a certain apartment house in Alameda County belonging to the defendant, the respective parties • agreeing to convey their properties free and clear of all encumbrances. The -contract contains various covenants and conditions, and also a provision—the one -principally involved in this case— reading as follows: “The parties- hereto- further mutually covenant and agree that they will each pay to Herman Eppinger, Jr., a commission of Eighteen hundred and Twenty-five dollars.” The contract was executed in triplicate, and a copy of it was left with Eppinger. It appears that this contract was entered into as -a result of the efforts of Eppinger, but was never consummated by an exchange of the properties; notwithstanding which it is the claim of the plaintiff that he is entitled, as the assignee of Eppinger, to recover from the defendant the sum of $1,825 under the clause of the contract above set out.

The evidence shows that the defendant was ready, able, and willing to- carry out his part of the contract, and that he made several ineffectual efforts to that end, and on- July 3, 1914, made a formal tender of his- deed, and thereupon deposited it in the Oakland Bank of Savings with instructions to deliver it to Fletcher at any time within ten days upon receipt of Fletcher’s deed to the land agreed by him to 'be conveyed. Fletcher was immediately notified of this deposit, and like notice was given to plaintiff’s assignor; but Fletcher, within the time limited by the contract or by the aforesaid notice, or at all, made no conveyance to the defendant -of the lands agreed by him to be transferred, nor any tender of a deed; and the evidence upon the trial showed that as t-o part of the land he possessed no title, and that subsequently Fletcher, by his attorney in fact, and the defendant entered