Wise v. Radis

FINLAYSON, P. J.

This is an action to recover a sum which plaintiff claims is due him as his share of a commission jointly earned by himself and defendant in negotiating the sale of certain real property on behalf of the owner. The commission was paid to the defendant by the owner of the property. The complaint, which is cast in the form of a common count for money had and received, alleges that defendant is indebted to plaintiff in the sum of $875 for money received by the former to and for plaintiff's use. From a judgment for plaintiff in the sum sued for the defendant appeals.

It is the theory of plaintiff that he and defendant were partners in the real estate transaction in which was earned the commission that was paid to defendant, and that, therefore, he is entitled to recover from defendant one-half of the commission so received by the latter. Briefly, the facts are these: During the year 1921 each of the parties to the action was a real estate broker engaged in business as such in the city of Los Angeles. Bach maintained an office at his own residence and each had obtained a real estate broker’s license for the year 1921, issued to him individually. In the early part of that year they orally agreed to work together as brokers in negotiating the purchase and sale of real properties. They agreed to divide equally all profits and losses made or incurred by them in each deal. Plaintiff testified that “each deal would be closed up separately”; that upon closing each deal they “would divide the profits after the expenses had been paid,” and that they “arranged to and did work together” on each deal. Some time in the month of November, 1921, the property the sale of which resulted in the payment of the commission here in question was listed by the owner with the parties to this action to negotiate a sale thereof as real estate brokers. Thereupon plaintiff and defendant caused a painted sign to be placed upon the premises which read, in part: “For Sale. See Radis and

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Wise . . . exclusive agents.” On January 6, 1922, plaintiff and defendant commenced the negotiations with the prospective buyer who later purchased the property; and on January 10, 1922, that person and the owner, who meanwhile had been introduced to one another by the parties to this action, came to an agreement upon the terms of the sale. On that date, therefore (January 10, 1922), plaintiff and defendant earned the commission which the vendor had agreed to pay them for their services. Thereafter, and prior to the commencement of the action, the vendor paid the full amount of the commission, amounting to $1,750, to defendant, who keeps it and refuses to pay any part of it to plaintiff. It is a fair inference from all the evidence in the case that defendant, before tha commencement of the negotiations with the person who later bought the property, had applied for and had received his real estate broker’s license for the year 1922. Plaintiff, however, did not apply for his license for the year 1922 until January 28th of that year, and none was issued to him until the thirty-first day of that month, or about three weeks after the sale of the property and the accrual of any right of action against the owner for the agreed commission. It may reasonably be inferred from all the testimony in the case that at no time did plaintiff or defendant apply for or receive a copartnership real estate broker’s license, i. e., a real estate broker’s license issued to the co-partnership, as such, in the firm name. Whatever license either possessed was one which had been issued to him individually and not as a member of a copartnership.