Rich v. Moss Beach Realty Co.

BRITTAIN, J.

The appeal is on the judgment-roll alone. The suit is for the balance due on an open book account for commissions claimed by the plaintiff for making sales of land owned by the defendant. The answer was twice amended. In the answer on which the parties went to trial the debt was denied, and a counterclaim also alleged ■to have been on an open book account was set forth. The case was tried by the court without a jury on June 1, 1916, and it was found that the defendant was indebted to the plaintiff in the sum of $2,672.35, which sum was about one hundred dollars less than the plaintiff claimed, and it was further found that none of the allegations of the answer or counterclaim was true except the allegation of corporate existence of the defendant. Judgment was entered in favor of the plaintiff for the amount found to be due with interest, the aggregate being $3,257.78.

Motion for new trial was granted on September 29, 1916, at which time no appeal from the order was permitted. (Code Civ. Proc., sec. 963.) The order limited the new trial to “the single issue as to the value of the services rendered by the plaintiff, in his complaint alleged to have been performed, no evidence having been offered or introduced by either party as to the reasonable value of said services, but that as to all other issues said motion for new trial was denied.”

According to the new findings, prior to July 1, 1909, the defendant entered into a written contract with the plaintiff employing him as agent to sell its subdivision of real property “for a commission of thirty-five (35%) per cent of the selling price of the property so sold by him”; and,

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that pursuant to said contract the plaintiff secured various persons who offered to buy different parcels of land and the defendant entered into a written contract of purchase and sale with each such person. Then follows in the findings a statement showing a list of names of twenty-five purchasers, the purchase price of the respective lots agreed to be paid by them in their written contracts with the defendant, the amounts respectively paid by them, and the amounts paid on account of commissions in each instance. The aggregate purchase price was $14,540.50; the amount of commissions at thirty-five per cent would have been $5,190.17. The table showed the purchasers had paid on their contracts $5,145.88; the plaintiff had received $2,413.39; the difference between this amount and thirty-five per cent of the purchase price is $2,776.78. The court further found that the reasonable value of the plaintiff’s services “is twenty-five per cent of the purchase price under each contract, not exceeding, however, the amount received by the defendant on account of the purchase price under the respective contracts of purchase,” which amount was found to be $2,639.58 on account of which the plaintiff had received $2,413.39 theretofore paid him, leaving a balance of $226.19. The court expressly repeated the findings concerning the untruthfulness of the defendant’s answer and counterclaim. The judgment was for $226.19 . and interest, making a total, of $311.43. There was no express finding concerning the balance due on the alleged open book account. In support of the judgment it is argued that such a finding must necessarily be implied.