Jack E. Cloyd Co. v. Taber

[385]

YORK, J.

This is an appeal from a judgment in favor of the plaintiff. In the month of May, 1924, a representative of plaintiff company observed a ‘1 Will-build-to-suit-tenant ’ ’ sign upon a lot at Temple Street and Burton Way in the city of Los Angeles, owned by defendant Emma E. Taber, which sign directed all inquiries regarding said lot be addressed to Lewelleyn J. Smith. On May 28th, as a culmination of discussion between plaintiff company and defendant Smith, an agreement was executed by them authorizing plaintiff to negotiate a lease for ten years upon a proposed theater building to be erected by Smith upon said lot, on a rental basis satisfactory to said Smith and the lessee. This agreement provided: “And for and in consideration of services which the Jack E. Cloyd Company may render in the negotiation of said lease or upon our closing the aforesaid lease with party or parties with whom the Jack E. Cloyd Company have had negotiations, we agree to pay the regular Realty Board commission at the time the plans and specifications are approved and accepted by the Lessee. ’ ’

Thereafter, on June 4, 1924, an agreement to build and lease was executed by said Smith, as builder, and Messrs. Sobelman and Balk, as lessees, in which it was agreed that a theater building to1 cost $50,000 should be erected upon the lot in question, and that the lessees would execute a lease for ten years at an aggregate rental of $142,800 for said term. It appears that the regular realty board commission at the time this agreement was executed was three per cent upon the sum of $64,800, the amount of rental payable for the first five years of the term, or the sum of $1944, and two per cent upon the sum of $78,000, the aggregate amount of rental payable during the second five years, or $1560, making a total of $3,504 commission, which amount subsequently, to wit: During the months of July, August and September, 1924, was paid to the plaintiff company by defendant Smith, who was given a receipt in full payment of all commissions due to said plaintiff under the agreement to lease.

It also appears that unknown to the plaintiff, defendant Smith entered into an agreement with the lessees, Sobelman and Balk, whereby the latter agreed to a material increase

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