Lacalusa Investment Co. v. Hesse

PRESTON, J.

This appeal was submitted upon an order to show cause, the respondent having failed to present or file a brief. The trial court found that plaintiff, as a real estate broker, was entitled to recover from defendants the sum of $6,879.60 as a commission for services rendered by it as such broker, and gave judgment accordingly. Defendants appealing urge numerous assignments of error as ground for reversal of the judgment.

It appears that appellants, owners of a lot upon which they planned to erect an apartment house, extended to one Stroud, a man previously in their employ as a general helper in connection with another building being constructed by them, the privilege of securing offers from prospective lessees for said new building. In other words, appellants advised said Stroud of certain terms which they would re

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quire to be incorporated in any lease before it would have their approval and orally authorized him to obtain propositions from prospective lessees and to submit such propositions to them for approval or rejection. In the event of their approval of any proposition, they were to pay said Stroud a commission for his services. Thereafter, said Stroud met and negotiated with Mr. Graf, the president of respondent corporation. As a result of these negotiations, said Stroud, through Mr. Graf, procured the signature of one Ida M. Theurer to a lease prepared by Mr. Graf and witnessed by him and also by said Stroud. Mrs. Theurer also deposited with Mr. Graf $9,555 to cover the five months’ rental in advance required by the provisions of said lease, which was to be for a term of ten years.

Appellants refused to accept this proposition. They never signed the lease nor approved it, nor did said deposit ever leave the hands of Mr. Graf. On the contrary, at about the same time, and likewise through negotiations conducted by said Stroud, appellants approved and executed an agreement to lease the property to another party at a slightly higher rental. Thereafter, contending that it earned a commission in securing the signature of Mrs. Theurer to said lease and in procuring said deposit from her, respondent instituted this action, which resulted in a judgment in its favor as aforesaid.

We find that the record substantiates the contentions of appellants, to wit: That there is no evidence of any agency of respondent for appellants; that there is no evidence of the employment of respondent by appellants as a real estate broker or in any other capacity; that there is no evidence that respondent rendered services of any kind at the instance of appellants or that appellants became indebted to respondent or that said Stroud had actual or ostensible authority, as the agent of appellants, to either make a lease or to employ another agent to do so.