Boyd v. Big Three Ranch Co.

ALLEN, P. J.

The action was one by a firm of real estate brokers to recover commissions on account of the sale of real estate. The facts connected with the transaction are these: On May 10, 1910, defendant corporation, through its secretary and treasurer, addressed a communication to plaintiffs by which it appointed them agents to negotiate the sale of an orange ranch comprising one hundred and eight acres, which ranch included a number of separate tracts, upon some of which were houses, and all of which were set out in oranges in various stage's of maturity; and under which communica-. tion plaintiffs were authorized to sell the ranch as an en

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tirety, or these separate tracts independently, at a certain fixed price as to each, upon terms specified. Thereafter, on November 11, 1910, defendant addressed another communication to plaintiffs in which it expressly revoked all authority covered by the previous one, and by this last communication made plaintiffs exclusive agents to sell the property as an entirety, or to sell independently a certain portion not herein involved. It was averred in the complaint that this last communication was thereafter modified, by which modification plaintiffs were empowered to sell also, independently, a certain eleven-acre tract; that pursuant thereto they did find a purchaser ready and willing to buy said eleven-acre tract at a price and upon terms agreeable to defendant, who sold the same, and this action is to recover commissions. The first count of the complaint demanded the five per cent stipulated in the written communication; and by the second cause of action it was sought to recover the reasonable value of such service, the same having been averred to be seven hundred and fifteen dollars. The answer raised an issue as to all of the material averments of the complaint. The trial court found all of the allegations of the complaint to be true and awarded judgment to plaintiffs for seven hundred and fifteen dollars and costs. A new trial was denied, and from the judgment and the order denying such new trial this appeal is prosecuted by defendant.

The rights of the parties upon this appeal rest upon the question of the sufficiency of the evidence to support the finding that the written agreement was modified in the particulars alleged in the complaint. It cannot be questioned that under the agreement of November 11th plaintiffs were not authorized to negotiate a sale of the eleven-acre tract independently, and that not having found a purchaser ready and willing to buy the ranch as an entirety, or that portion specified as subject to independent sale, no commission could be recovered on account of the sale alleged.