Shanks & March v. Michael

ALLEN, J.

Action by the plaintiffs to recover of defendant broker’s commissions upon a written agreement. Findings and judgment for plaintiffs, from which judgment and an order denying a new trial defendant, W. T. Michael, appeals.

The complaint avers that on June 19, 1905, the defendant entered into an agreement "with the plaintiffs whereby said defendant agreed to pay plaintiffs as their commission for making an exchange for certain properties one-half the usual commission, and that it was agreed that the usual commission for making such sales was $650. Judgment was asked

[554]

for $325. The answer denies that any exchange of properties between defendant and the other party was ever made or effected, or any services rendered by plaintiffs in effecting an exchange of defendant’s property. Admits the execution of a contract to pay commissions, but alleges that it was executed upon the condition that an exchange should be consummated upon certain conditions, and avers that it was not consummated, owing to the inability of the other parties to meet the terms and conditions of the exchange. Upon the trial the court found all of the allegations of the complaint to be true, and that it was not true that the agreement to pay the $325 was dependent upon the consummation of the exchange, nor that the exchange was not consummated because of the inability of the other contracting party to meet the terms and conditions of the contract. The contract to pay these commissions reads as follows:

“Los Angeles, Cal., June 19th, 1905.

“I hereby agree to pay Shanks & March one-half the usual commission paid on the sale of Real Estate in Los Angeles as full compensation for negotiating deal with Ina E. Van Norman. Usual commission being understood to be 5 per cent on first $1000 and 2 1-2 per cent on values above one thousand.

“W. T. MICHAEL.

“We agree to accept the above rate as full compensation for our services in the above transaction.

“SHANKS & MARCH.”

It will be noted that the complaint alleges that the agreement to pay was for commissions for making the exchange of defendant’s property with one Van Norman, and the agreement also purports to pay one-half of the usual commission paid on the sale of real estate. It follows, therefore, that to entitle plaintiffs to recover under their complaint an actual exchange should have been consummated, or a valid agreement therefor made. In the latter event, plaintiffs would have been entitled to the commission even had the parties thereafter rescinded the agreement, or either party made default in compliance with its terms. It is conceded that no actual transfer was consummated, and the record shows that no valid agreement for an exchange was ever made. Plaintiffs who drew the contract claimed to be an agreement of