Fogg v. McAdam

SHAW, J.

Action to recover a broker’s commission for negotiating an exchange of real estate.

The sole question involved is the ruling of the court in sustaining a general demurrer to the complaint. Upon the making of the order and plaintiff’s declining to amend, judgment was entered for defendant, from which plaintiff prosecutes this appeal.

The complaint alleges that on May 11, 1911, defendant in writing authorized Merrill & Fogg, plaintiff’s assignors, to negotiate an exchange of certain real estate then owned by him for certain ranch property, consisting of four hundred and eighty acres, owned by one W. E. Premo. The written authorization, as set forth in the complaint, is as follows:

“Pasadena, Calif., May 11, 1911.

“Mrss. Merrill and Fogg,

‘ ‘ Gentlemen: As per agreement to make you a definite offer on the Premo Eanch of 480 acres, will make the following offer: First, said Premo to take the property shown him on Colorado Street for $50,000 and I retain a portion of lot No. 2, in the rear and give him right of way across the rear of lot No. 1 so that he would have access to the rear of his buildings, also house and of lot on Morningside Ave., east of Huntington Drive, lot No. 15, Culver Subdivision, and assume the mortgage on his ranch for $10,000 and $8000,00 in cash within sixty days, and also $900 commission. This offer is made subject to again looking over the ranch within one week from the above date.

“(Signed) James McAdam.”

[524]

That thereupon Merrill & Fogg undertook the negotiation of an exchange and endeavored to induce said Premo to accept the offer and make the exchange of the properties described as proposed by defendant. Not only is there a failure to allege the acceptance of the offer on the part of Premo, but it is alleged that defendant, as he reserved the right to do, inspected the property of Premo within a week after the date of making the proposal and withdrew the same. Thereafter, as alleged in the complaint, defendant orally requested plaintiff’s assignors to secure Premo’s consent to an exchange of a part of the ranch (being the property described in the within authorization, less 80 acres) upon other and different terms and considerations than those specified in the withdrawn written proposal made by defendant. That pursuant to this request, plaintiff’s assignors did bring defendant and Premo together and as a result of their efforts defendant and Premo entered into a written contract for the exchange of certain properties other than those described in the written authorization so withdrawn by defendant, and upon other and entirely different terms and conditions from those therein specified.