Toomy v. Dunphy

Gibson, C. Plaintiff brought this action to recover of the defendant $18,750 as the reasonable value of his services rendered in procuring a purchaser for defendant’s, ranch in the state of Nevada, with the live-stock and farming implements thereon, at the fixed price of $150,000, payable in three several installments, under a writing signed by the defendant, the material part of which is as follows:—

“Henry Toomy can arrange for the sale of my ranch in Nevada, as per within memorandum.”

On the trial, the plaintiff, to sustain the issues upon his part, after proving that he was a real estate broker and agent, and the execution and delivery of the memorandum, above referred to, offered it in evidence, and upon the objection of the defendant that it was incompetent, etc., because it neither specified that the employment of plaintiff was for compensation or a commission, nor the amount of any compensation or commission, for his services, it was excluded. The plaintiff next offered to prove that he found a purchaser able, ready, and willing to purchase, who was acceptable to the defendant, and that his — plaintiff’s — services were reasonably worth the amount demanded. The evidence so offered was excluded on defendant’s objection, on the ground [641]that there was no evidence tending to show that the plaintiff had been employed by a contract in writing as broker or agent to sell the property for compensation or a commission. Then, after other evidence of the same character as the last was offered and excluded, the plaintiff rested his case.

The defendant, without offering any evidence, did likewise, and thereupon the judgment, from which plaintiff appeals, was rendered against him.

The exclusion of the memorandum presents the gist of the controversy. The appellant contends that all that a writing employing a broker or agent to purchase or sell real estate for compensation or a commission need, show is, the fact of employment; and that it is not required to express that such employment is for compensation or a commission. While, on the other hand, the respondent contends that, to be valid, it must disclose that the employment is for compensation or a commission.

By section 1624 of the Civil Code it is provided: “The following contracts are invalid, unless the same, or some note or memorandum 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 a commission.”