Breen v. Roy

California Court of Appeal Jul 1, 1908 No. Civ. No. 467.Published

Before: Cooper

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Holding. The trial court erred in directing a verdict for the defendant, as the plaintiff was entitled to present evidence that the defendant prevented the performance of a brokerage contract and promised to pay for services rendered thereunder. A plaintiff may maintain an action in indebitatus assumpsit to recover for services performed when the defendant has prevented the completion of a written contract.

Issues

Whether a plaintiff may recover for services rendered under a brokerage contract when the defendant prevents performance and promises payment.
Whether the trial court erred in directing a verdict for the defendant before the plaintiff had finished presenting evidence.

Disposition. reversed

Quotations verified verbatim against the opinion

“The performance of the contract having been prevented by the defendant, the action was brought in the form of indebitatus assumpsit, and not directly upon the contract.”

“It was error for the court to take the ease from the jury and to preclude plaintiff from introducing his testimony.”

Synopsis

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge.

The facts are stated in the opinion of the court.

COOPER, P. J.

This action was brought to recover $350 for services alleged to have been rendered and performed by the assignors of plaintiff for defendant at his special instance

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and request. The complaint alleges that defendant promised and agreed to pay to plaintiff’s assignors the said sum of $350 for such services. The answer denies that the plaintiff’s assignors ever rendered or performed any services for defendant at his special instance or request or otherwise, or that defendant ever promised to pay $350 or any other sum for any such services or for any services.

The case was tried before the court with a jury duly impaneled.

Plaintiff, in order to prove his case, introduced without objection an agreement in writing, signed by defendant, which is as follows:

“San Francisco, California, August 27, 1906.

“I hereby authorize Sullivan, Feder

Kahn exclusively for the term of five days from date to sell and enter into and sign a writing contract in my name and for me, for the sale and conveyance of the following described property: Situate in the City and County of San Francisco, State of California, to wit, on the north line of Geary street 141 3/12 feet east of Fillmore street 25 by 127 6/12 feet, with the improvements thereon in course of alteration; leased for -five years from Oct. 1, 1906, at $300 per month. Cost of alterations to be paid by purchaser. And I agree to accept the sum of fourteen thousand dollars ($14,000.00) in U. S. gold coin, and I agree to pay Sullivan, Feder & Kahn

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per cent commission on the sale price thereof. G. M. ROY.”

Mr. Feder was called by plaintiff as a witness, and testified that on the twenty-ninth day of August, 1906, the defendant came into the office and asked that no further efforts be made to sell the property under the contract, and that defendant then and there said to witness: “Dan O’Callaghan has an' offer for this property. He has a deposit of $500, and I believe that he will sell it, and therefore if he does sell it I will get $500 over and above what your price calls for.” While this witness was on the stand and plaintiff’s counsel was further examining him, the following took place:

Breen v. Roy

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Synopsis

COOPER, P. J.

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