Turner v. Watkins (1918) · DecisionDepot

Turner v. Watkins

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Mar 12, 1918 No. Civ. No. 2114.Published

Before: Works

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Holding. A real estate broker earns their commission upon presenting a party ready, able, and willing to exchange property, even if the final consummation of the exchange does not occur, provided the broker has fulfilled their contractual obligations.

Issues

Whether a denial based solely on a lack of information, without a lack of belief, satisfies the requirements of Section 437 of the Code of Civil Procedure.
Whether a broker's commission is earned when the parties have entered into an agreement for exchange, even if the exchange is not ultimately consummated.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A denial in that form is insufficient, for section 437 permits a denial only upon the want of both information and belief and not upon a want of information alone.”

Synopsis

The facts are stated in the opinion of the court,

WORKS, J.,

pro

tem.

This is an action for the recovery of a broker’s commission for an exchange of real property, under a contract between the plaintiff and the defendant’s intestate, W. C. Watkins. The plaintiff had judgment and the defendant appeals.

At the opening of the trial the respondent contended that the denials of appellant’s answer were insufficient to present a defense and asked the court to rule that the, appellant should go forward with his proof in support of certain affirmative defenses set up in the answer. The court ruled accordingly and the ruling is assigned as error. The claim that the denials of the answer were insufficient was based upon the fact that they were preceded by the following statement, ending with a colon: “Not having sufficient information on which to base his answer, defendant denies.” Section 437 of the Code of Civil Procedure contains this language: “If the defendant has no information or belief upon the subject sufficient to enable him to answer an allegation of the complaint, he may so state in his answer, and place his denial on that ground.” It will be observed that the denials in the answer in this action were predicated upon a lack of information only and not upon a lack of information and belief. A denial in that form is insufficient, for section 437 permits a denial only upon the want of both information and belief and not upon a want of information alone.

(Humphreys

McCall,

9 Cal. 59, 62, [70 Am. Dec. 621].)

The appellant insists, however, that the affirmative allegations of his answer present a state of facts inconsistent with the allegations of the complaint, and that for that reason the answer amounted to a traverse of the complaint; and he accordingly contends that the respondent should have been compelled to go forward with the introduction of evidence in support of the complaint. The affirmative matter in the answer was to the effect that the exchange for the bringing about of which the respondent claimed a commission “was not consummated within the thirty days set apart for that

[505]

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quotation marks, the language not being found in the report of the case first cited and being stated in a dissenting-opinion in the report of the second; he cites four cases to a statement within quotation marks and the quoted language is found in none of them; he quotes from the opinion in another case, but omits from his quotation an important clause found in the opinion, and without indicating the omission in any way; he quotes certain language as being in the case last mentioned when it is not to be found in the opinion, and he-later commits the same offense as to another reported case. Counsel for the respondent calls attention in his points and authorities to all these derelictions, and, in addition, specifies two or three other faults of the same character. We have not examined into these latter charges because of the length of the reports of the cases in which they are involved. In his reply points and authorities Mr. Roark has only this to say upon the subject which now interests tus: “Respondent, after offering a great variety of criticisms to citations of law quoted by appellant bearing on the point as to what constitutes consummation of a real estate broker’s contract, was charitable enough to concede that the laws of the states of Maryland and Georgia, dealing with contracts of thig character, support appellant’s contention.” The amazement with which we view the conduct of Mr. Roark in the matter of the erroneous citations and quotations in his points and- authorities is heightened by the cavalier manner in which he seeks to dismiss the subject. If, in fact, these misquotations were no more than the result of gross carelessness, he should have admitted the facts, with an apology and a suggestion of any excuse that he might have for committing such errors. Nothing less was due to the court, which is entitled to rely upon counsel for a true statement of the language contained in quoted decisions. He has left himself in a very poor position to urge the charge made in his reply brief, that opposing counsel has pursued a certain course in framing his argument, “for the purpose of confusing this court.”

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Synopsis

WORKS, J.,

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