Logan v. McMullen

[155]

HARRISON, P. J.

Action to recover for services as broker for the purchase of certain real estate. A judgment of non-suit was rendered against the plaintiff, and he has appealed therefrom.

At the trial, after testifying that he was* a real estate broker, and that he had had several interviews with the defendant regarding the property referred to in the complaint, the plaintiff offered in evidence the following instrument as a note or memorandum in writing requisite under section 1624, Civil Code, for his recovery, viz.:

“Oakland, Cal., July 31, ’03.

“Walter E. Logan:

“Sir: If you can purchase N. W. corner of 13th and Franklin streets 75x100 for $42,000 I think we would be ready to purchase same by Monday next.

“j. c. McMullen.”

—and in connection therewith offered to prove that, acting under it, he went to San Francisco on Friday, July 31st, and had an interview with the owners of the property, and showed them this instrument, and got from them “an offer” that they would accept $42]000; that the proposition was made that it was to be “arranged” on Monday; that a few minutes before noon on the next day, Saturday, the defendant stated to him that he would go with him to San Francisco on the next out-going narrow gauge train; to which he replied that he could not go on that train but would go on the next broad gauge train and would meet him at the owner’s office; that he went over and remained there for three hours, but the defendant did not make his appearance; that thereafter the defendant met him and stated that he recognized that he had rendered services in the matter and that he would be compensated therefor. The defendant objected to the introduction of the instrument on" the ground that it is incompetent and irrelevant; that it does not comply with the requirements of section 1624, Civil Code; that it does not purport to employ or authorize the plaintiff to purchase the real estate for the defendant or to act as his broker. The court sustained the objections, to which ruling the plaintiff excepted; and the plaintiff, admitting that there was no other writing or authorization of employment, and offering no other evidence,