Curran v. Holland

COOPER, C.—

Action to recover commission for procuring a loan under an express contract. Findings were filed and judgment entered in favor of plaintiff:. This appeal is from the judgment and an order denying defendant a new trial.

It is claimed that the court erred in allowing parol evidence for the purpose of showing that defendant was the principal in the written agreement as to plaintiff’s commission.

The agreement was as follows:—

“This is to certify that I, David Gregor, hereby authorize Charles S. Curran to negotiate for me a loan upon my property at the northeast corner of Broadway and Tenth Streets, Broadway, Oakland, Alameda County, Cal., for the sum of $70,000, for which I agree to pay-him the sum of $500 as commission, and I hereby authorize the mortgagee to pay the same to said Curran out of said loan and said Curran’s receipt therefor shall be good.

“Witness my hand this 14th day of January, 1902.

“Witness: A. P. Holland.” David Gregor.

There is no question but that plaintiff performed the services and procured a party ready and willing to make the loan, nor is it questioned that David Gregor is liable by the express words of the agreement. The testimony outside the writing showed that defendant was the real party in interest, and that Gregor signed as agent or for the purpose of keeping secret the name of defendant. This was done at the defendant’s request. Defendant’s own version of the transaction is as follows: “I had an arrangement with Mr. Mott as to the obtaining of a loan regarding this property. Some time in December I went to Mr. Mott and asked him if he could procure a loan of $75,000 on property on Tenth and Broadway. I made it a condition of the loan that I should not make the application, nor should I sign the mortgage papers, and I

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told him that if he succeeded in getting the loan, and the deal went through, I explained to him that I had not yet got the property, I didn’t at that time have it, if the deal went through I would pay him $500 ... so Gregor and Judge went up to Curran’s office, which was the first time I had ever been there. ... I didn’t state or acknowledge that I was the principal in this matter. I had very good reasons for not doing so. ... I know that the agreement that was signed was for money that was to be used by me for the purchase of this property. . . . When we went into Curran’s office we had a general conversation that might have been had under circumstances of that sort. We talked to Mr. Curran about the loan. . . . The money they were trying to borrow was for my use to purchase this property, and I presume I was subsequently notified that they had obtained the loan of $65,000 flat and $5,000 in installments, and it was satisfactory to me.”