Daniel v. Calkins

RICHARDS, J.

This is an appeal from a judgment and order denying the defendants’ motion for a new trial.

The action was brought to recover the sum of $550 alleged to be due as the commission of a real estate agent in securing a purchaser for the property of the defendant, Sadie B. Calkins, pursuant to a written contract of authorization and also an alleged oral agreement as to the amount of commission to be received in the event of a sale. The evidence in the case discloses that the plaintiff was a real estate agent residing and doing business as such at Sunnyvale, in the county of Santa Clara, in the year 1912; that during the month of July of that year the defendant, Sadie B. Calkins, was in possession of a piece of real estate of which she was shortly to become the owner, and that in that month and at her request the plaintiff took a Mr. Deckman (who subsequently became the purchaser of the property) out to see it with a view to buying it; that the price of twelve thousand five hundred dollars was quoted to him at that time by plaintiff, and he said he would take the property at that figure; but when the plaintiff reported these facts to Mrs. Calkins she said that she had decided not to sell, but later, in the meantime having received title to the property, she requested the plaintiff to reopen negotiations with Mr. Deckman. It was at or about this time that the following writing was executed between the parties:

“Sunnyvale, Cal. August 23, 1912.

“W. C. Daniel: I hereby authorize you solely to sell for me and my account the following described real estate . . .

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for the sum or price of $11,700.00 net; and I agree to pay you no per cent as a commission on said sale when made. I further agree to furnish a complete abstract of title to date of transfer. This authorization to remain in full force and effect for thirty days, after which notice must be given in writing to terminate this contract.

“ (Signed) Sadie B. Calkins.

“Witness: ■ (Signed) W. C. Daniel.”

At the time of the execution of the foregoing writing the plaintiff testifies, and the court finds, that an oral agreement was made between the parties to the effect that in the event of his success in securing a purchaser for the premises, the plaintiff was to receive as his compensation a sum equal to the difference between the net price specified in said writing and such price as the property should- be sold for. In the meantime the plaintiff corresponded by telegrams and letters with Mr. Deckman, who was at the time in the east, but who later and during the life of the plaintiff’s written contract came to California, re-examined the property, and finally purchased it directly from the owner for the sum of twelve thousand dollars. After the consummation of such sale the plaintiff demanded as his commission a sum equal to the difference between the amount named in the written authorization as the net sum to be received by the owner and the sum actually paid by the purchaser of the property, to wit, the sum of three hundred dollars.