Gray v. the Janss Investment Co.

In this action the plaintiffs, real estate brokers, sued the defendants, also real estate brokers, pursuant to the terms of an alleged oral agreement, for the recovery of one-half of a commission alleged to have been paid to the defendants by both parties to an exchange of real properties. *Page 636

The plaintiffs' complaint alleged, among other things, that, as a result of several conferences between the plaintiffs and defendants concerning the exchange of the said real properties, an agreement was entered into between plaintiffs and defendants whereby any commission or compensation which should be earned and paid should be equally divided between the plaintiffs and defendants. Subsequently, and as the result of further conferences and negotiations between the plaintiffs and the defendants, it was agreed between them, so the complaint alleged, that for the purpose of more effectively promoting an exchange of said real properties, the plaintiffs would not actively participate in the exchange negotiations and that the same should be conducted solely by the defendants, who thereupon and in consideration thereof promised and agreed with the plaintiffs to charge and collect, upon the consummation of the contemplated exchange, a commission from both owners and to divide the same with plaintiffs. Thereupon and thereafter the plaintiffs confided the entire management and control of the negotiations for the exchange of the said properties to said defendants. In short, plaintiffs' complaint proceeded upon the theory that the agreement between plaintiffs and defendants as formulated and made was, in effect, one of copartnership in the promotion of the proposed exchange and a division of the commissions between the plaintiffs and the defendants which were to be collected by the defendants alone from both principals. The defendants consummated an exchange of the said properties and collected from each of the respective owners of the said real properties a large commission and compensation.

The complaint further alleged that defendants concealed from plaintiffs the character, extent, and amount of the commissions so received by them from both owners of the said real properties, and that although plaintiffs demanded an accounting therefor, the defendants refused to acknowledge plaintiffs' claim of an interest in any part of said commissions so received.

The facts adduced in support of plaintiffs' case are substantially these: The defendant, the Janss Investment Company, doing business as real estate brokers in the city of Los Angeles, was the agent for the owners of certain lands in the states of Idaho and Utah who were desirous of exchanging *Page 637 the same for income property situate in the city of Los Angeles, and accordingly listed said lands with the defendants for such an exchange. At about the same time, the owners of a certain apartment house in the city of Los Angeles, known as the Bowers Hotel, listed the same with the plaintiffs for exchange, and one of the plaintiffs, accompanied by the owner of the Bowers Hotel, inspected the same for the purpose of acquiring data to be used in negotiating an exchange of said property. Subsequently, and prior to the time of plaintiffs' entering into negotiations with the defendant, Janss Investment Company, the plaintiffs made several separate endeavors to sell or exchange the Bowers Hotel property, and with that end in view said property was shown to several prospective purchasers. Some time in the month of June, 1917, after the Bowers Hotel property had been listed with the plaintiffs, a Mr. Shiffer, a real estate broker operating in the city of Los Angeles, inquired of the plaintiffs if they had listed with them and could submit for exchange for Idaho and Utah lands income business property in the city of Los Angeles. Plaintiffs replied that they had listed with them several such properties, including the Bowers Hotel property. Thereupon, Mr. Shiffer stated that he was making inquiries for Mr. Kendall, of the Janss Investment Company, and upon the following day he brought Kendall to the office of the plaintiffs, who then and there submitted to Mr. Kendall, for exchange, a list of several properties situated in the city of Los Angeles, including the Bowers Hotel property. Kendall mentioned the Idaho and Utah lands, and after giving a description of the same to plaintiffs, said: "I think that that Bowers Hotel will interest my party." Plaintiffs thereupon prepared and presented to Mr. Kendall for the defendant, Janss Investment Company, a typewritten detailed description of the Bowers Hotel property and thereafter were in frequent communication with Mr. Kendall concerning the details of the proposed exchange. The plaintiffs and defendants had several conferences for the purpose of getting their principals together on a proposition for an exchange of their respective properties. These conferences, conducted by the plaintiffs and the defendant Kendall as agent of the Janss Investment Company, culminated in a proposal from Kendall, accepted by plaintiffs, that plaintiffs and defendants work together in negotiating *Page 638 an exchange of the properties of their respective principals. At that time, and as a part of these conferences, the defendant, Janss Investment Company, through their agent Kendall, furnished plaintiffs with a description and list of the properties in Idaho and Utah which were to be exchanged for the property of the plaintiffs' principal situated in the city of Los Angeles. Thereupon, the plaintiffs presented the proposition of exchange to their principal, the owner of the Bowers Hotel in Los Angeles. It was understood and agreed between plaintiffs and defendants in the first instance that the plaintiffs for their commission would look to their principal, the owner of the Bowers Hotel, and that the defendants for their commission would look to their principals, the owners of the Idaho and Utah lands.