Dolan v. O'Toole

HAYNES, C.

Defendant was the owner of a certain mine, and had contracted with a third party for the sale of it upon certain terms—in substance, that the purchaser should be put in possession for a specified time for the purpose of examination and development, and, if found satisfactory, to pay therefor a specified price. Plaintiff was an experienced miner and expert, and was well acquainted with the location of the mine and the work done in it, and while the conditional purchasers were in possession under their contract and prospecting for ore, defendant made a contract with the plaintiff for his services “to be" rendered in aiding him' [defendant] to consummate the sale under the contract,” and for which, if the sale was made, he was to receive ten per cent of the purchase price. It appearing that the said contract for plaintiff’s services was oral, objection was made and sustained to the evidence. It was then offered by the plaintiff to be shown that at the request of the purchasers plaintiff gave them directions where to work to develop ore, that his directions were followed successfully and resulted in such development of ore as induced the purchase under said contract. The court sustained the objection to the offered evidence and rendered judgment for the defendant, and plaintiff appeals.

Section 1624 of the Civil Code provides: “The following contracts are invalid unless the same, or some note or memorandum

[490]

thereof, be in writing and subscribed by the party to be charged, or by his agent: .... 6. An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or commission.”

In

Shanklin v.

Hall, 100 Cal. 26, the court below made the following findings of fact: “That on the seventeenth day of April, 1890, the plaintiff and defendant entered into an oral agreement, whereby it was agreed between them that plaintiff should use his knowledge and influence on behalf of, and render his services to, defendant to enable him to sell or exchange the lands mentioned in the complaint herein, for which plaintiff was to be paid by the defendant the sum of four hundred and fifty dollars as soon as the sale or exchange was effected through his, the plaintiff’s, knowledge, influence, or services rendered to him, the defendant,” and that the plaintiff rendered the services as agreed, and that a transfer of the land was made by virtue of such services of plaintiff; and the court below concluded that plaintiff was entitled to recover. Upon appeal this court came to the opposite conclusion, holding that the contract was void under the provisions of the code above cited.