Realty Bonds & Finance Co. v. Point Richmond Canal & Land Co.

SHAW, J.

This is an appeal from the judgment and from an order denying a motion for new trial. The record is brought up in typewritten form under section 953a of the Code of Civil Procedure.

The plaintiff sued the appellant on a contract executed between plaintiff and appellant on September 15, 1907, whereby the appellant constituted the plaintiff its sole and exclusive agent to sell certain real property belonging to appellant. The object of the action was to recover the commissions alleged to be due to the plaintiff for the sales made by it under the agreement. Cutting and Wernse were made parties, and judgment asked against them, solely upon the ground that they are stockholders of the defendant corporation. They do not appeal and their rights are not presented for consideration except as they may depend upon the rights of the appellant. The appellant filed a cross-complaint alleging that the plaintiff was indebted to it in a sum exceeding the amount due the plaintiff for commissions, and asking judgment for the excess. The case was tried by a jury and a verdict was returned in favor of the appellant for the sum of $26.46. Judgment was rendered accordingly. The appellant claims that it should have had judgment against the plaintiff for a much larger sum.

With respect to the commissions in controversy the agreement provided as follows:

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“The said party of the first part agrees to pay as commission on said sales and for remuneration for the time and expense of selling, twenty-five per cent (25%) of the amount of said sales in said tract; ten per cent (10%) out of the first payment and) one-half (½) of all other payments until said commission is paid in full. ’ ’

Upon the trial a question was put to the jury and answered by it as follows:

“The theory of the plaintiff is that it is entitled under the circumstances in this ease to commissions in full on all of the lots sold by it whether forty per cent of the purchase price has been paid or not. Do you find for or against the plaintiff on this claim? Answer: Yes (for plaintiff).”

The argument of the appellant that it was improper to put this question to the jury is met by the fact that it was submitted to the jury at the request of both parties. The appellant also contends that the answer is not sustained by the evidence. In the aspect presented by the above paragraph of the agreement, if unaffected by any other facts, the question would be purely one of law. By the agreement the plaintiff was to receive commissions equal to twenty-five per cent of the amount of sales as made, of which ten per cent was to be taken out of the first payment and one-half of all other payments was to be applied thereon until the full twenty-five per cent was paid. In legal effect this meant that, when a sale was made, ten per cent of the purchase price was to be paid to plaintiff out of the first payment on such price and one-lialf of each succeeding payment was to be paid to the plaintiff, as the payments were made, until such one-half equaled fifteen per cent of the total purchase price. The result would be that the plaintiff would receive its full commission on such sale as soon as forty per cent of the total price had been paid. If this constituted the whole case, the plaintiff would not be entitled to the whole commission until the forty per cent of the purchase price was actually paid. The answer of the jury that the plaintiff was entitled to commissions in full, whether forty per cent of the purchase price had been paid or not, would be erroneous if no other facts were taken into consideration.