Aldis v. Schleicher
Before: Shaw
Synopsis
Action Against Real Estate Broker to Recover Commissions—Statute of Frauds—Insufficient Complaint.—Conceding that a real estate broker authorized in writing to effect a sale of real estate may make an oral contract to pay a commission to another broker, who finally secured a purchaser thereof, yet a complaint to recover under said oral contract with defendant, which does not aver that the defendant was authorized in writing by the owner to effect a sale of the property, states no cause of action, and a general demurrer thereto was properly sustained.
Id.—Construction of Statute of Frauds—Employment by Persons not Owners.—The provision in section 1624 of the Civil Code that “an agreement authorizing or employing an agent or broker to purchase or sell real estate for a compensation or a commission ” is “invalid, unless the same or some note or memorandum thereof is is in writing and subscribed by the party to be charged,” while designed to protect owners of real estate against unfounded claims of brokers, is nevertheless equally applicable to any contract whereby one, whether an owner or not, employs another to effect a sale of real estate and agrees unconditionally to pay a stipulated sum for the performance of such services.
SHAW, J.
At the time of the transaction both plaintiff and defendant were real estate brokers. The former seeks to recover from defendant a broker’s commission upon an oral agreement for services rendered in effecting a sale of certain real estate, which agreement, it is alleged, was made with defendant as the agent and broker of Frances D. Kraemer and Frank White, each of whom, with defendant,
[373]
owned an undivided one-third interest in the property sold. It is alleged in the complaint “that in offering said property for sale the defendant was acting as the, agent of said Frances D. Kraemer and of said Frank White as to the interest held by each of them in said property as aforesaid; that as such agent for said Frances D. Kraemer and said Frank White defendant entered into an oral agreement with plaintiff, wherein and whereby the defendant agreed to pay plaintiff a reasonable commission if plaintiff would effect a sale of the property hereinbefore described.” It is further alleged that plaintiff effected a sale thereof, by reason whereof and by reason,of said agreement there became due to him from the defendant a reasonable commission upon the price for which the property was sold.
Defendant interposed a general demurrer, and also demurred to the complaint specially, alleging as grounds therefor that the cause of action was barred by subdivision 6 of section 1624 of the Civil Code, and that the complaint was uncertain, in that it could not be ascertained whether the agreement was for the division of commissions between plaintiff and defendant, or whether the plaintiff was to receive the entire commission for the sale of the property. This demurrer was by the court overruled. Upon trial judgment was rendered in favor of plaintiff for a reasonable commission upon that portion of the sale price of the property other than that found to be owned by the defendant. Defendant appeals from the judgment, and from an order denying his motion for a new trial.
Section 1624 of the Civil Code provides in express terms that “an agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission” is “invalid unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged, or by his agent.” While it is true, as said in
More from California Court of Appeal
- People v. Hill (1998)
- In Re Autumn H. (1994)
- Nwosu v. Uba (2004)
- In Re Casey D. (1999)
- Santisas v. Goodin (1998)
- Cahill v. San Diego Gas & Electric Co. (2011)
- People v. Rivera (2015)
- People v. Barnett (1998)
- People v. Serrano (2012)
- Benach v. County of Los Angeles (2007)