Woolley v. Batchelder

RICHARDS, J.

This is an appeal from a judgment in favor of the defendants in an action brought to recover a real estate agent’s commission.

The facts of the case are in the main undisputed, and are these: The property involved in the transaction out of which the plaintiff claims his right to a commission to have arisen is a mining property known as the Rising Hope mine. Many years ago the mine was located by three persons named MeCrellish; Hamilton, and Batchelder, the title to the property being taken in the name of McCrellish alone, and upon his death it was distributed to his widow, Mary P. McCrellish, and stood in her name until her death in the year 1911. It

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is conceded, however, that Hamilton and Batchelder, the associates of MeCrellish, had at all times each a one-fifth interest in the mine, which in course of time descended to Mrs. Batchelder and Mrs. Hamilton, the defendants herein. l([cCrellish in his lifetime owned, and his widow succeeded to, a three-fifths interest in the mine. Efforts were made from time to time to sell the mine but without success, until finally in the year 1910 Mrs. MeCrellish, through the aid and services of the plaintiff in this action—who, however, was not acting under any written authority at the time—succeeded in making a contract with one Schuyler N. Warren, by the terms of which the latter was given the right to enter upon the property and do certain development work thereon, rendering a monthly account to Mrs. MeCrellish, through the plaintiff as her agent, of his labor and expenditures upon the premises, and paying into the Bank of California twenty per cent of the gross amount of the clean-ups resulting from his operation of the mine. Warren was also by this agreement given an option to purchase the mine for the price of forty thousand dollars, which was to be paid by the aggregation of these sums accruing to Mrs. MeCrellish from the clean-ups of the mine. The agreement contained a clause providing that “H. M. Woolley may represent the party of the first part [Mrs. MeCrellish] and J- B. Partridge and G. W. Englehardt may represent the party of the second part [Warren] in all the above-mentioned matters.” It was also provided that a deed conveying the entire property should be placed in escrow with the Bank of California to be delivered to Warren when the sum of forty thousand dollars, the purchase price of the mine, was paid in the manner specified in the agreement. This deed was so deposited, and with it Mrs. MeCrellish also deposited two written orders directing the bank to pay the plaintiff herein ten per cent of all moneys paid in by Warren, and also to pay Mr. Partridge ten per cent of such moneys. Mrs. MeCrellish died in February, 1911, and not long after her death Mrs. Hamilton and Mrs. Batchelder brought an action against the executor of her estate to have it determined that they were each the owner of a one-fifth interest in the mine. Judgment was rendered in their favor in the action in July, 1911, and about the time of its entry the plaintiffs in that action made an agreement with the executor of Mrs. MeCrellish’s estate by which