Hirschberg v. Rose

KNIGHT, J.

Plaintiff obtained judgment against defendants for $1200, and defendants appeal. The complaint contained two common counts, stated separately, the first, for money had and received and the second for money loaned.The answer consisted of denials of the allegations of the complaint; and on the issues of fact- raised thereby the trial

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court found in plaintiff’s favor and entered judgment accordingly.

It appears that the controversy arose over the advancement by plaintiff to defendants of the sum of $1200 in connection with defendants’ services in procuring a tenant for certain premises plaintiff was about to acquire. Insufficiency of the evidence to support the findings is urged as the main ground of appeal. The record discloses, however, that there is a sharp conflict of testimony on the controlling issues of fact in the case, and after having reviewed all. of the evidence we are satisfied that the trial court’s findings and judgment are supported thereby.

In this regard the evidence shows that in April, 1925, plaintiff was negotiating for the purchase of certain premises on the corner of Post and Fillmore Streets in San Francisco, and in contemplation of such purchase authorized the defendant Rose, of the defendant firm of M. L. Rose and Company, to procure a prospective lessee for said premises. It was understood that defendants should receive therefor the commission fixed for such services by the rules of the real estate board, which amounted to $1400. Pursuant to such authorization Rose procured a prospective tenant, who on April 16, 1925, signed a lease acceptable to plaintiff, and as a guarantee for the faithful performance of the terms of the lease deposited $5,000, which plaintiff placed to his credit in a special account in the bank. At the time he opened such account plaintiff introduced Rose to a Mr. Panario, one of the bank’s executives, stating, among other things, that he desired to deposit also the sum of $1400 to be paid to Rose as a commission for procuring the lease when plaintiff acquired the property. Acting under these instructions, Panario drafted a letter to the bank, which plaintiff signed, directing the bank to pay the $1400 to defendants “upon our acquiring title to this property”; and continuing, the letter stated: “We expect to acquire title to the same on or before June 21, and will notify you at that time. In the event that we do not acquire title by July 1, we will reserve the right to withdraw this deposit.” Rose read the letter and claims he stated at the time that it did not express his understanding of the agreement; nevertheless the wording of the letter was not altered, and a copy of it was delivered to Rose, which he