Ingle Manufacturing Co. v. Scales

CONREY, P. J.

The defendant appeals from that part of the judgment which was based upon the third cause of

[411]

action set out in the complaint. This cause of action was based upon a contract of the defendant to pay to one Robert Deyo a commission for services rendered in procuring an exchange of real property between defendant Scales and another person. As to this cause of action plaintiff sued as assignee of Deyo.

Appellant contends that the evidence was not sufficient to prove an assignment of Deyo’s right to the commission; that no consideration for the assignment was proved, and that the plaintiff had no right to receive the assignment. The third point is based upon the limitations contained in plaintiff’s article's of incorporation expressing the purposes of its creation, which purposes did not include the business of agency for transfers of real property or the business of collecting claims for other persons.

The instrument of assignment signed by Deyo purported to transfer to plaintiff “all my right, title and interest in 'and to a certain agreement for the exchange of real property, executed on the 28th day of May, 1915, by W. A. Bolton, and accepted on the 29th day of June, 1915, by J. H. Scales, in which said agreement I am named as the agent for each of said parties for the exchange of the properties described in said agreement.” The exchange agreement between Bolton and Scales bore the dates May 20, 1915, and June 4, 1915. The dates in the contract are thus shown to be different from the dates in the assignment. It was, however, shown by the testimony of Deyo that at the time of the assignment the said contract was the only written agreement or contract that he" had with Seales. By the terms of that contract Scales agreed that on the making of the exchange he would pay to Deyo, “as per separate agreement, commission for such services,” etc. The amount of this commission was proven by parol. No objection is urged that the evidence determining this amount was only in parol. At least the agent was entitled, under the writing alone, to a reasonable compensation for his services.

(Muncy

v.

Thompson,