Deyoe v. Paonessa

CONREY, P. J.

The appellant C. P. Deyoe having died pending this appeal, the present appellant has been substituted in his place as plaintiff and appellant. The appeal is from an order denying plaintiff’s motion for a new trial.

The second count of the complaint alleges that the plaintiff at the special instance and request of the defendant rendered services to the defendant in procuring for the defendant a purchaser for certain personal property amounting in value to the sum of twenty thousand dollars, and that for said price defendant sold, traded, and exchanged said property to a purchaser, and in consideration thereof the defendant agreed to pay plaintiff a commission which amounted to the sum of one thousand dollars. The answer denies these allegations, “except as hereinafter alleged,” and then sets forth that the alleged agreement “was one purporting to authorize or employ the plaintiff as a broker to purchase real estate for a compensation ; that said alleged agreement is not, and was never, in any writing subscribed by the defendant or his agent, and that there is not now, nor was there ever, any note or memorandum thereof subscribed by defendant or by his agent; that said alleged agreement is invalid under subdivision 6 of section 1624 of the Civil Code.”

The plaintiff was engaged in the business of buying and selling real estate on commisison, and it was a part of his business to sell stocks and bonds on commission. The defendant being the owner of certain street improvement contracts on which he was to receive money thereafter to become due, informed plaintiff that he had this amount of twenty thousand dollars in contracts and that he would like to make some sort of a deal whereby he could get the money, and orally promised to pay the commission. After sundry negotiations, which are described in the evidence, the plaintiff brought about a transaction whereby the defendant received certain real property in exchange for said contracts. The transaction was based upon the stated valuation of twenty thousand dollars for the contracts.

These facts being in evidence, the court granted defendant’s motion for a nonsuit on the ground that the evidence

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“failed to substantiate the allegations contained in the complaint.’’