Davis v. Chipman

THE COURT.

This is an appeal from a judgment of nonsuit.

The order of nonsuit was made on the second trial of the case after the reversal of a judgment for the plaintiffs entered on the same issues as are here presented.

(Davis

v.

Chipman,

210 Cal. 609 [293 Pac. 40].)

[230]

The plaintiffs on this appeal contend that the additional evidence introduced, together with evidence offered and claimed to have been erroneously rejected by the court, entitle them to have the facts submitted to a jury. On the former appeal it was held that the plaintiffs, not having become licensed real estate brokers until long after the contract of sale of the land involved had been entered into on July 29, 1924, between the defendant, as trustee of the Phelps estate, as seller, and Virgil M. Price, as purchaser, were not entitled to recover a commission. The contract of employment, dated April 24, 1924, pursuant to which the plaintiff Davis on the former trial sought to prove his right to a commission, is quoted in the opinion in

Davis

v.

Chipman, supra,

at pages 612, 613.

All of the evidence introduced on the former trial was considered to be in the case on the second trial. The plaintiffs then introduced new documentary evidence, consisting of a contract dated May 21, 1924, made within the life of the option of April 24, 1924, by the defendant for the sale of the property to Thomas B. Dozier, Jr., but which was forfeited after the first payment of $1250 thereunder. The plaintiffs contend that the execution of this contract was an exercise of the option of April 24, 1924, the effect of which was to abrogate and extinguish both the option and commission agreements of April 24, 1924, and, together with other evidence offered by the plaintiffs, was sufficient upon which the jury could base a finding that a new oral agreement had been consummated whereby the plaintiff Davis became entitled to receive a commission from the defendant for introducing Virgil M. Price to him. The plaintiffs must necessarily concede that none of the testimony evidences an express oral agreement, but they base their contention on their claim that the jury could infer from the evidence received and the evidence offered and rejected that such an agreement had been effected.