Contant v. Wallace

WORKS, J.

This cause was tried, the appeal was perfected, and the briefs on appeal were filed in the lifetime of Jacob Sholley, the original defendant. The suggestion of his death and the substitution of his executor in his stead were made in this court.

Plaintiff, a real estate broker, brought the action for the purpose of recovering a broker’s commission. The complaint alleges that Sholley employed her as his agent to sell a certain parcel of real property, that she found a purchaser and that Sholley “accepted the proposal of the purchaser so secured . . . and entered into a written agreement of purchase and sale relating to said real property with said purchaser.” Plaintiff had judgment and Sholley appealed.

That the above-mentioned allegations were all true was established at the trial by uncontradicted evidence, at least to the extent that it was shown that a purported agreement was entered into between Sholley and the purchaser, but appellant contends that the “agreement” was incomplete and unenforceable. Without passing upon this claim, it is enough to say that the point is immaterial. “The contract of the broker is to negotiate a sale; that is, to produce a valid contract to purchase, which can be enforced by the vendor if his title is perfect; or

if he does not procure such contract

(italics ours), to bring the vendor and the proposed purchaser together, that the vendor may secure such a contract, unless he is willing to trust to an oral agreement”

(Gunn

v.

Bank of California,

99 Cal. 349 [33 Pac. 1105]. See, also,

Mott

v.

Minor,

11 Cal. App. 774 [106 Pac. 244];

Cone

v.

Keil,

18 Cal. App. 675 [124 Pac. 548];

Massie

v.

Chatom,

163 Cal. 772 [127 Pac. 56];