Lamia v. Tozzi

CRAIG, J.

In an action for commissions alleged to have accrued for services rendered under a contract to obtain an agreement to furnish to the defendant and appellant fifty carloads of oranges, the latter appealed from a judgment founded upon affirmative findings of fact.

In the interest of economy of time and discussion a common ground of the parties may be stated as established. The plaintiff, a fruit broker, was requested by the defendant to buy for the latter fifty carloads of Valencia oranges, preseason, the seller to pay broker’s commission, but first to advise as to name of shipper and brand obtainable before closing the purchase; in an interchange of correspondence the broker stated after negotiations that he had located and obtained from the Highlands Orchard Company, of Highland, California, for Tozzi, fifty carloads of Cherokee brand oranges at six cents per pound for shipment one car daily, terms $200 on each car to be deposited at once on confirmation, balance cash when shipped, plus brokerage; the buyer after examination of said brand wrote and telegraphed that he would give the quoted price and make said deposit upon signing contract, “accept fifty cars Valencias, price, terms, shipping date satisfactory”; upon receipt of a telegram advising that the purchase had been made and that the papers would be prepared and mailed immediately, a telegraphic reply and confirmation by mail to the broker stated, “Satisfactory; draw contract today, mail same immediately for approval.” Further recital of terms and prepared and signed contract specifying the agreed grade, quality, price, terms of payment and shipment were promptly forwarded to the buyer; the plaintiff testified that after making a careful study of the situation, inspecting groves in all good districts, and investigating the market and crop conditions he “brought the deal about” preparatory to filling so large an order. The appellant did not disapprove any term or condition of the stipulated contract, but at this point the transaction was at an end; he notified his

[447]

broker that he was interested in another fruit district, and had “therefore decided to pass it up”. Receiving no response to demands for consideration of his claim, the broker filed suit against the buyer, James Tozzi doing business as above indicated, and others, and each thereof individually, but process was served upon the first-named defendant alone.