Pearson v. Crummer

[708]

CRAIG, J.

The respondent instituted an action in the superior court of Riverside County for commissions alleged to have been earned by him as a realtor in obtaining for appellant an agreement in writing, between the latter and G. W. Short and Henry Pitcher, for the exchange of certain real and personal properties. A demurrer and motion to strike out portions of the complaint having been overruled, and after trial judgment being rendered in favor of the plaintiff, the defendant appealed.

The plaintiff alleged that he procured for the defendant a contract in writing by the terms of which the defendant agreed to convey certain real property, described in the complaint, for certain real property of the value of $30,000, and the “stock of feed, grains, fuel, tires, etc., and two parts of farm machinery, seeds, poultry supplies and all personal property and stock in trade, of the value of $12,000, belonging to the defendant. The contract also provided for trucks and fixtures connected with the business,” including tire delivery of “one Bethlehem truck and one stump puller to be decided upon later.” The complaint further alleged that the plaintiff was employed by defendant to obtain such agreement, for which the latter agreed to pay him a commission of two and one-half per centum of the value of defendant’s real property, and five per centum of the value of the personal property as it should inventory at the time of acceptance and approval of the agreement for exchange. The plaintiff averred that the parties to the proposed exchange inspected all of the properties mentioned, and that each executed and delivered to the other said exchange contract.

It appears that the contract of employment was at first merely oral, but that after such inspection and definite agreement, and before conveyance by either party, it was committed to writing, providing that in the matter of commission “in the deal now pending,” said commission should be paid “on or before consummation of this exchange”; and that the value of the personal property should be based “on the amount on hand at the acceptance or approval of said agreement” between the vendors.

The grounds of appeal consist of contentions (1), that the description and amount of personal property proposed to be