Masten v. Griffing

By the Court, Shafter, J.: This is an action to recover the sum of three thousand dollars for services alleged to have been performed for the defendant by one Henry Leffingwell, as broker. The plaintiff claims as assignee of Leffingwell. The plaintiff was non-suited at the trial, and the only question presented is whether the evidence put in by the plaintiff in his opening tended to prove the cause of action set up in the complaint. (Cravens v. Dewey, 13 Cal. 40.) We are of the opinion that the case was not supported by the evidence upon which the plaintiff rested, and that the nonsuit was therefore properly directed.

First—The complaint charged that the defendant promised Leffingwell that if he “ would procure a purchaser for certain premises who would agree to purchase the same, that he, the said defendant, would pay the said Leffingwell, as his com[115]pensation for procuring such purchaser, such sum of money exceeding the sum of sixty-two thousand dollars as the purchaser should agree to pay for said property.” It was further alleged that Leffingwell did thereafter “ procure a purchaser for said property, who did agree to purchase the same at and for the sum of sixty-live thousand dollars, gold coin of the United States; and the said defendant did then and there contract and agree in writing, under his hand, to sell and convey to- the purchaser so procured by the said Leffingwell as aforesaid the said premises before mentioned.”

According to these allegations Leffingwell was to be entitled to commissions in the event of his finding a person who “ would agree ” to purchase the land at a sum exceeding sixty-two thousand' dollars; the defendant being required to do nothing on his part except to sell, or to agree to sell and convey the land. The contract on which the commissions were cast was, in short, to be land for money, and money for land. Admitting, for the present, that the evidence of the plaintiff tended to prove that the agreement between the plaintiff and Leffingwell was set forth correctly in the complaint, still there .was no evidence tending to prove that Leffingwell ever found a party who either agreed, or would agree, to pay anything in excess of sixty-two thousand dollars, or any sum whatever, for the land alone, as alleged. The evidence was, at the most, that one Livingston, by Leffingwell’s procurement, offered to pay, or to agree to pay, sixty-five thousand dollars for the land, in the event that the defendant would lease the property of him, Livingston, for three years ensuing the conveyance and delivery of possession, for the sum of twelve hundred dollars per month, payable monthly, with satisfactory guaranty for the payment of the rent; and to pay all taxes that might be levied upon the property during the continuance of the term. However meritorious the services of Leffingwell may have been in procuring the purchaser on these terms, it is sufficient to say, that the terms were radically different from those upon which