Sumner v. Nevin

ALLEN, J.

Judgment for defendant entered upon an order sustaining a demurrer, without leave to amend, from which plaintiff appeals.

It appears from the amended complaint that plaintiff, in November, 1901, held an exclusive agency for the sale of certain real property in the city of Los Angeles; that while such agency was in force plaintiff and defendant entered into a contract, by the terms of which plaintiff employed defendant in sajd business of real estate and in such other capacity as he might elect, and the second party agreed to devote his entire time and attention to the interests and business of said first party upon such business as said first party may direct, receiving as compensation therefor ten per cent commission

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on all policies of insurance placed by him with said first party, and one-half of the net commissions received on all loans, rentals, real estate deals and other transactions brought to plaintiff by defendant. It was agreed that such contract of employment might be terminated by either party upon fifteen days’ notice in writing, and that all deals pending at the time of the termination of said contract were to be closed and the proceeds divided under the contract. After the execution of this contract of employment, the agency of the plaintiff in relation to said tract first mentioned terminated, and plaintiff directed defendant to enter into negotiations with the owners for an extension of such exclusive agency in plaintiff’s behalf. It is averred that defendant, instead of procuring an extension in behalf of plaintiff, took from the owners in his own name a contract of agency, by the terms of which defendant personally obtained the exclusive agency at a commission less than that originally agreed to be paid to plaintiff; that on August 10, 1902, defendant notified plaintiff of the termination of his contract of employment, and at the same time notified him that he had taken the exclusive agency of the tract in his own name, and thereafter proceeded to the sale of lots in said tract, some of which were by him sold after July, 1902, and before September 1st, the amount of which sales aggregated $3,300; and under the contract of defendant with the owners of the tract would have entitled him, at a commission of seven and one-half per cent, to the sum of $247.50, gross commission. There is no specific statement as to any other lots sold prior to the termination of employment.