Gould v. Otto

KNIGHT, J.

Plaintiff brought this action to recover the sum of $640 claimed to be due for services rendered in connection with the sale of defendants’ real property, and was given judgment for the sum of $300. The defendants appeal.

The amended complaint contained six counts. The first declared upon an agreement authorizing respondent to sell said real property at a stated price, for commission of $640; the others were common counts, the third being a

quantum meruit

for services rendered at appellants’ request. Answering, appellants denied the allegations of the respective counts, and alleged as affirmative defense that the agreement upon which the several causes of action were founded was unenforceable because there was no note or memorandum thereof in writing subscribed by appellants or. their agent, as is required by the statute of frauds. (Subd. 6, see. 1973, Code Civ.

Proc.;

subd. 6, sec. 1624, Civ. Code.)

[411]

The material facts are not disputed, and are as follows: On March 9, 1924, at the office of the California Homes Association in San Carlos, San Mateo County, appellants verbally authorized respondent to sell the real property described in the complaint, respondent at the time being a licensed real estate salesman in the employ of said company, and one Fred H. Drake. The next day, according to respondent’s testimony, pursuant to such verbal authorization, and acting in the capacity of a real estate salesman, he took three prospective buyers to inspect the property, among them being one Mansfield, and on April 14, 1924, Mansfield’s wife purchased the property, having carried on the negotiations and concluded the sale directly with appellants.

It is apparent from the rulings of the trial court made on the admissibility of evidence and on motion for nonsuit, as well as from the conclusions stated in its written opinion, that judgment was rendered in respondent’s favor upon the theory that, although a contract for the employment of an agent to sell real estate must be in writing, respondent in fact made no sale of the property, having merely sent a prospective buyer to appellants, who negotiated and concluded the sale, without solicitations on the part of respondent; and that for the service of “sending the purchaser” to appellants, respondent was entitled to reasonable compensation. Therefore, basing its decision' solely on the third count of the amended complaint, the court made findings to the effect that respondent had “rendered and performed for defendants certain services” for which the latter agreed to pay a reasonable amount and accordingly judgment was entered for the sum of $300, the court having found such amount to be the reasonable value of said services.