Smith v. Rasmussen

SEAWELL, J.

Plaintiff appeals from a judgment in favor of defendants in an action brought by him as assignee to recover $3,250 alleged to have become due and owing to his assignors as a real estate brokers’ commission for services performed by said assignors in effecting the exchange of ranch property owned by defendants for an apartment house owned by G-. R. Searl and H. Geraldine Searl, his wife.

The complaint alleges that defendants, by an agreement in writing, employed plaintiff’s assignors to make the exchange ; that said assignors secured an offer of exchange which was accepted by defendants, and the exchange was consummated and such deeds, bills of sale, and other instruments in writing as were necessary to convey title to the respective parcels of realty and appurtenant property were executed and delivered. It is further alleged that the defendants placed a value of $65,000 on the property, and that it was exchanged upon the basis of said valuation, and

[780]

that upon the completion of said exchange defendants became indebted to plaintiff’s assignors in the sum of $3,250, a .sum equal to five per cent of $65,000, as brokers’ commission, $3,250 being the reasonable value of the services rendered. The complaint contains no allegation of an express agreement to pay a commission in the sum of $3,250, or in any sum whatsoever.

Plaintiff in his brief sets out two theories upon which he bases his right to recover. The fir.st is that the evidence shows an agreement that plaintiff’s assignors were not to be compensated for their services by the payment of a cash commission, but in lieu thereof defendants were to transfer the apartment house which they were receiving in exchange for their ranch property to plaintiff’s assignors at a price sufficiently low to enable said assignors to realize a substantial profit upon resale and thus compensate themselves for their services rendered defendants; that defendants having “violated their agreement to give this net contract, he [plaintiff] was entitled to recover the reasonable value of his assignor’s services.” The second theory advanced by appellant is that the compensation of plaintiff’s assignors Was to be the difference between the sum of $30,000, which amount was to be respondents’ sale price, and whatever sum plaintiff’s assignors might be able to obtain for it in advance of said sum of $30,000.