Hageman v. O'Brien

CONREY, P. J.

This action is prosecuted by the plaintiff, a real estáte agent, to recover commissions from the defendants, who also are real estate agents. The claim is based upon an alleged contract for services rendered by the plaintiff in connection with sales of land belonging to a cer

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tain corporation. Judgment was rendered in favor of the plaintiff, and defendants appeal from an order denying their motion for a new trial.

The lands that were sold are in Mexico. The defendants had their principal place of business in San Fransciso, and the plaintiff was located in the county of Santa Clara. The defendants being the authorized agents for the sale of said lands, delivered to plaintiff a letter dated October 22, 1908, in which they agreed to pay plaintiff “a commission of 5% on all the land we sell through your assistance, whether they are closed directly or indirectly by you.” Defendants also delivered to plaintiff a letter, dated November 5, 1908, in which they said: “If you desire to operate in San Luis Obispo and Monterey counties, in the sale of the Yaqui Valley lands controlled by us, we will pay you a commission of $6 per hectare on all land sold by you, commission payable to you as and when received by us. All sales to be made through this office and subject to our approval. We will furnish you printed matter, such as we have, and will assist you in every way possible. It is understood, however, that you are to pay your own expenses such as office, advertising, commissions to sub-agents, etc.” Of the sums included in the judgment in this action, one hundred and sixty dollars was allowed as a commission to plaintiff under the five per cent agreement for land sold to G. B. Seely of Santa Clara County. The remainder of the judgment is on account of lands sold to James Martin, D. McFadden, W. H. Martin, and H. Bardin, severally, who were residents of Monterey County.

Among the grounds asserted in support of the motion for a new trial, appellants specify that the evidence is insufficient to support the court’s findings wherein it was determined that the defendants employed plaintiff and agreed with him for commissions as alleged in the complaint, and was further determined that pursuant to said agreement plaintiff procured purchasers for portions of said lands, as alleged in the complaint and set forth in the findings of fact. Appellants’ first point in the argument is that the writings offered in evidence are insufficient to constitute a contract within the meaning of subdivision 6 of section 1624 of the Civil Code, which appellants claim is applicable to this case. The transactions between plaintiff and defendants here and their