Vatcher v. Grier

[40]

WELLER, J.

Plaintiff appeals from an adverse judgment entered after a demurrer to Ms complaint had been sustained without leave to amend.

The complaint alleges that plaintiff’s assignors were employed by defendant to negotiate the sale of certain lands in San Diego County, and that as the result of their efforts the defendant executed certain escrow instructions to the Union Title & Trust Company of San Diego, which provided for the payment of $5,000 cash and $85,000 in installments, secured by a trust deed on the property. On the. nineteenth day of October, 1912, the same day that the escrow was deposited, defendant agreed in writing to pay plaintiff’s assignors for their services in effecting the sale the sum of $10,000, they in return to pay defendant the sum of $2,500 for the work done by him in negotiating the deal. By the terms of the written agreement such payments were to be made, “eleven and one-ninth (11-1/9) per cent of each payment as payments are made; one-fourth (¼) to be applied on the commission to be paid to the party of the first part [defendants], and three-fourths (%) to be applied on the commission to be paid by the parties of the second part [plaintiff’s assignors].” It further is alleged that, by the terms of the agreement, defendant promised to pay plaintiff’s assignors $7,500, in seven installments, as the payments fell due under the trust deed mentioned in the escrow instructions, the last three payments so specified maturing April 19, 1914, October 19, 1914, and April 19, 1915, respectively. So far as the record shows, this action was commenced on May 1, 1918.

The demurrer was general and also on the ground that the cause of action was barred by the provisions of section 337 of the Code of Civil Procedure.

This is not the ordinary case of a broker’s contract, where the right of recovery is dependent upon the performance of precedent conditions by the broker. The agreement here in question was made after the services had been completed, and is to be construed according to its terms.

[1]

We shall first consider the plea of the statute of limitations. The complaint attempts to allege an unqualified promise to pay $7,500 in seven installments, falling due at specified dates, five of which matured more than four years prior to the filing of the complaint. As to these five install