Ellis v. Clear Lake Beach Co.

PARKER, J.,

pro

tem.

Plaintiffs recovered judgment against defendants for the sum of $850, with interest and costs. Defendants appeal. The nature of the controversy may be outlined through a synopsis of the pleadings.

The complaint was in three counts. By the first count plaintiffs alleged a written contract for the sale of certain real estate, by the terms of which contract defendants agreed to sell to plaintiffs the property described upon the payment of the sum of $3,000. Payment in full was alleged, with the allegations of demand and refusal to convey, together with other appropriate allegations going to sustain a demand for specific performance. The second count alleged that plaintiffs had earned certain commissions as real estate salesmen which amounts were due and owing from defendants to plaintiffs and that plaintiffs had advanced to defendants other sums of money, the grand total alleged due being $3,000. The third count was for work and labor done and performed for the benefit of and at the special instance and request of defendants and for moneys advanced; the demand totaling $3,000. •

The separate counts were intended as repetitions of the same claim. The answer admitted the execution of the contract of sale, but alleged that there had been paid thereunder no further sum or sums than would total the amount of $630. The answer further denies any breach on the part of defendants, but avers a willingness on their part to fully perform upon the payment of the full amount

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of $3,000. The defendants deny specifically the allegations of counts two and three of the complaint.

The facts developed at the trial may now be considered. The defendants were the owners of a certain tract of land in the county of Lake, state of California, which said tract had been subdivided into lots of varying sizes and offered for sale to the general public. The plaintiffs were employed by defendants as salesmen and under the contract of employment the plaintiffs were to receive as remuneration for services all sums collected by them as first payments upon sales of the lots. Under their employment the plaintiffs sold certain lots, taking from the purchasers the promissory notes of the latter and retaining the same as their compensation. The total of these notes was in the amount of $1890. There was an accrued indebtedness, from defendants to plaintiffs, in the sum of $100 represented by a credit bonus certificate.