Barker v. Morrell

STURTEVANT, J.

The plaintiff commenced an action against the defendant to obtain a judgment for moneys al

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leged to be due and owing. The defendant answered and the action was tried before the court sitting without a jury. Judgment went for the plaintiff and the defendant has appealed under section 953a of the Code of Civil Procedure.

Shortly prior to the eighth day of June, 1921, M. J. Ma-honey and W. Sicotti were real estate brokers occupying the same office in San Jose. At the same time Myrtle P. Barker was a real estate broker and had an office at Los Gatos. At the same time the defendant Mrs. Morrell was a real estate broker and had an office in San Jose. Among other properties the plaintiff had listed the property of W. H. Crawford and wife. Shortly before the date last mentioned Mrs. Morrell called at the office of the plaintiff and stated that she would like some properties in that neighborhood and that all deals consummated between the plaintiff and the defendant should be shared equally fifty-fifty on the commission. A few days later the defendant again called and brought with her Ambrose Taylor, who owned some properties in San J ose. The plaintiff entered the automobile which the defendant was driving and together all three went to the property so owned by Mr. Crawford. Thereafter Mr. Mahoney entered into the transaction and took some part in the negotiations. Mr. Sicotti did the same thing. Still later such negotiations were had that an exchange was agreed upon as between Mr. Crawford and Mr. Taylor. At that time a dispute arose as to how the commissions should be disbursed. The amount of the commissions was not at all in dispute, but the question arose as to what individuals were entitled to share im the payments. Mahoney and Sicotti maintained that they were entitled to the whole; Mrs. Morrell claimed that she was entitled to one-half; this plaintiff claimed that she was entitled to one-half. A conference was held between the owners of the properties and the real estate brokers and the disbursement of the commissions was gone over. At that time the plaintiff was not present; however, as a result of the conference,

a,

writing was executed as follows: “San Jose, June 8th 1921. We the undersigned do hereby agree to accept one-third each of any and all commissions coming from the sale or exchange of the properties owned by Ambrose Taylor and his wife Amelia and W. H. Crawford and his wife Maude. Provided that Mrs. B. Morrell is to settle with Mrs. Barker