W. B. McGerry & Co. v. Marsicano

KERRIGAN, J.

This action was brought to recover the sum of $8,865.00 for services performed by the plaintiff corporation as broker in negotiating a lease of real property in San Francisco belonging to defendant. Judgment went for plaintiff for the full amount demanded in the complaint. The appeal is from the judgment and from an order denying defendant’s motion for a new trial.

The lease negotiated by plaintiff was for a period of twenty-five years, and by its terms the rent for the first five years was to be one thousand five hundred dollars per month, or eighteen thousand dollars a year; for the second period of five years the monthly rent was to be one thousand seven hundred' and fifty dollars, aggregating for that period one hundred and five thousand dollars; for the third period of five years the monthly rental was two thousand dollars, making for that period of time the sum of one hundred and twenty thousand dollars; for the remaining ten years of the lease the monthly rental was two thousand two hundred dollars, amounting in that time to two hundred and sixty-four thousand dollars. The total of the rent thus reserved to the defendant under the lease amounted to the sum of five hundred and seventy-nine thousand dollars. In addition to the obligation to pay this amount the lessee was to erect a building upon the leased land which, at the expiration of the term, was to become the property of the lessor. Furthermore, all taxes and other charges against the property were to be paid by the lessee.

Plaintiff’s claim for compensation for its services in negotiating said lease was based upon a percentage of two and one-half on the first year’s rental, amounting to the sum of four hundred and fifty dollars, and one and one-half per cent

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on the rental for the remainder of the term, amounting to eight thousand four hundred and fifteen dollars, making a total of eight thousand eight hundred and sixty-five dollars. This amount was claimed by the plaintiff to be the reasonable value of the services rendered by it for the benefit of the defendant.

It was claimed by the defendant at the trial, as it is now claimed here, that when he employed the plaintiff to effect the lease it was agreed that no commission was to be paid by him, but that the plaintiff should look to the lessee for compensation for its services. Plaintiff denied that any such agreement existed, and the evidence produced at the trial