Dolan v. Scanlan

McKee, J.: This case arises out of an action to recover certain commissions which, it is claimed, the defendant agreed to pay to the plaintiff for selling certain mining property.

The complaint alleges that the defendant was the owner of a mine in Mariposa County, called the Golden Virgin Mine ; that he employed the plaintiff to sell it for him ; that he agreed to pay plaintiff for his services, in making a sale, the sum of $5,000 ; and that the plaintiff did, in pursuance of his employment, on the 20th day of May, 1877, negotiate and complete a sale of the mine to one C. W. Thomas for $20,000; yet the defendant refuses to pay him his commissions therefor.

[263]The -allegations of the complaint are denied by the answer. The Court below gave judgment in favor of the plaintiff. Defendant moved for a new trial, upon the grounds, among others: "Insufficiency of the evidence to justify the decision of the Court; and the same is against law. The evidence being insufficient in this:

“ (a) That it failed entirely to show or establish any contract whatever between the plaintiff and the defendant.

“ (b) That said evidence failed to show that plaintiff found a purchaser for said mine.

“ (c) That the evidence does show that the defendant himself procured the purchaser, and actually sold the mine himself, unaided and unassisted by the plaintiff.”

The motion for a new trial was denied, and from the order and judgment defendant appealed.

To recover in an action for brokerage or commissions for a sale of real property, two things are necessary to be established: 1. That the plaintiff was employed to make the sale. 2. That in pursuance of his employment, he found a purchaser in a situation ready a,nd willing to complete the purchase on terms agreed upon. (McGavock v. Woodlief, 20 How. 221; Middleton v. Findla, 25 Cal. 76; Phelan v. Gardner, 43 id. 306.)

. It appears by the record, that in the year 1876 the defendant was engaged in opening the mine referred to, and at the same time trying to sell it. While so engaged, he availed himself of the proffered services of the plaintiff, who resided in San Francisco, to buy for him certain articles of machinery for a five-stamp mill, which he was putting up on the mine, and to forward them to him. lie had bonded the mine to a party, and others were examining it with a view of purchasing it, but they all failed him; and becoming anxious to sell, as he had not the requisite means to develop it, he wrote to plaintiff on the 16th of January, 1877, as follows :