Henderson v. Perrott

CHIPMAN, P. J.

This is an action to recover commissions for the sale of land. Plaintiff had judgment, from which, and from the order denying his motion for a new trial, defendant appeals.

The complaint avers: “That on or about October 1, 1905, defendant and one G. R. Georgeson, then being the owners in common of 3494 acres of timber lands situate in Humboldt county, entered into an agreement with plaintiff, whereby they agreed that if plaintiff should find a purchaser for said lands, at the agreed price of $25.00 per acre, they would pay to plaintiff, as a commission, the sum of $1.00 per acre on said lands”; that thereafter Georgeson “sold his individual one-half interest in said lands to one John C. Bull, Jr., who purchased the same with knowledge of said agreement and its terms”; that thereafter plaintiff secured a purchaser in the person of one Hickey, at the agreed price, and on December 8,1906, said Hickey purchased of said defendant and said Bull the said lands, paying therefor the sum of $25 per acre and the said Bull paid to plaintiff $1747.47, the same being due plaintiff from said Bull as owner of the undivided one-half of said lands; that defendant refused, and still refuses,

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to pay plaintiff the sum of $1,747.47 as commissions due from defendant to plaintiff for selling said land.

Defendant denied specifically the averments of the complaint; “and in that behalf avers that defendant and one G. R. Georgeson entered into a contract with plaintiff whereby plaintiff was to have a commission from the sale of said timber lands in Humboldt county provided said plaintiff sold said lands within a limited time, and defendant further avers that said plaintiff did not sell said land within the time limited.”

As a separate defense it is averred that the agreement sued upon is invalid under section 1624 of the Civil Code, because not in writing, and denied having entered into any agreement in writing or having made any note or memorandum in writing relating to the sále of said lands.

The cause was tried by a jury and a verdict was rendered for $1,747.47, with interest from the day of sale of said lands. There were two interrogatories given the jury to be passed upon, as follows: