Butler v. Solano Land Co.

LANGDON, P. J.

This is an appeal by the plaintiff from a judgment against him upon a motion for nonsuit.

[173]

The action was for $8,457, alleged to be due plaintiff as commission for selling land of the defendant. Defendant answered, admitting a verbal contract with the plaintiff, but asserting that such contract was conditioned upon the full performance by the. purchaser of his contract to purchase the land, and that the purchaser produced had performed none of the conditions of his contract; and further alleged that no written contract was ever entered into between the plaintiff and defendant, or between the plaintiff and anyone authorized to act for the defendant. The plaintiff 'submitted his case upon his own testimony solely, and introduced in evidence a document reading as follows:

1 ‘ San Francisco, Cal.

“April 12, 1917.

“This is to certify that H. W. Butler is entitled to five per cent commission on sale made by him of what is known as the Barnhart Tract, estimated to be 5,638 acres, at $30 an acre.

“Payment of this commission to be arranged between Mr. H. W. Butler and Mr. E. A. Bunker, president of the Solano Land Company.

“Solano Land Company,

“E. A. Bunker, President.”

As the plaintiff must recover, if at all, upon a written contract (Civ. Code, sec. 1624, subd. 6; Code Civ. Proc., see. 1973, subd. 6), the only question presented upon this appeal is whether or not the corporation is bound by the above-quoted writing.

[1]

The record contains no proof of express authority of the president to make this contract ; there is no seal affixed to' the document to make it

prima facie

proof against the corporation. It was incumbent upon the plaintiff to prove either that the officer executing the. instrument was expressly authorized to execute the same, or that it was an act fairly within the implied powers incidental to his office, or that the corporation is estopped to deny his authority by reason of having accepted the benefit of the contract, or otherwise.