Diamond v. Fay

JAMES, J.

Defendant was the owner of a lot of land on one of the principal streets- of the city of Los Angeles

[567]

which he desired to sell or lease. Plaintiff, a real estate broker, was authorized in writing by defendant to find a purchaser for the property, or a tenant who would lease it for five or ten years. The written authorization which was signed by the defendant contained the following condition: “And it is agreed, that in case he shall secure a purchaser or tenant for said property I agree to pay him the regular brokerage or commission for selling i. e., a sum equal to 5% on the first $1,000, and 2%% on the remainder of the purchase price accepted by me, provided that no commission shall be less than $100, said commission to be paid out of the first money received. In case of a lease, will pay the commission on usual basis.”

Plaintiff in his complaint alleged that pursuant to the authority so given he found a person who was ready, able, and willing to rent and lease the property of defendant for a term of ten years at the required monthly rental, and that defendant had refused to enter into any lease. The prayer of the complaint was for an amount of money which was alleged to be the customary and usual commission allowed to brokers and the reasonable value of the services expended in that behalf. In his amended answer defendant admitted the execution of the contract set out in plaintiff’s complaint, and then alleged that the contract did not clearly set forth the true terms of the agreement in that it had been agreed that the compensation of plaintiff would be earned only when he had secured a person satisfactory to defendant who would lease the property for ten years, and that compensation was only to be paid in case a lease was actually made, and then it was to be taken out of the first money received on such account. It was further alleged that plaintiff did introduce to defendant a prospective tenant and that the defendant, desiring to be informed and satisfied of the ability of this person to pay the rent' as contemplated, requested the latter to furnish a statement in writing showing what his financial ability was, which writing was promised to be produced, that it had never been furnished to the defendant, and that through no fault of his he did not make a lease of the property. The amended answer also contained a denial that plaintiff ever produced a proposed tenant who was ready, able, and willing to lease the property .on the terms