Rucker v. Hall

California Supreme Court Jan 4, 1895 No. No. 15421Published

Before: Haynes

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Holding. The trial court erred in compelling the plaintiffs to elect between two counts of a complaint based on the same contract when the plaintiffs could not know the precise nature of the defendant's liability before trial. The court further erred in its findings regarding the defendant's sale of the property, as the defendant's lease-option agreement effectively withdrew the property from sale under the terms of the agency contract.

Issues

Whether the trial court erred in requiring the plaintiffs to elect between two counts of a complaint based on the same contract.
Whether the defendant's lease-option agreement constituted a sale or withdrawal of property triggering commission obligations under the agency contract.

Disposition. reversed

Quotations verified verbatim against the opinion

“the court erred in requiring the plaintiffs to elect between the counts, and to rely upon one only.”

“where the plaintiff cannot know before the evidence is all in the precise nature and limits of defendant’s liability to him, he may state his cause of action variously in different counts of the complaint”

“The order denying a new trial should be reversed and a new trial ordered.”

Synopsis

Heal Estate Brokers—Contract for Commissions—Alternatives— Pleading—Election of Counts — Single Subject of Action.— Where real estate brokers made a written contract for the sale of lands through their agency, for a specified commission, in which the owner of the land agreed that if he found a purchaser independent of the real estate agents, or withdrew the property from the sale, he was to pay one-half of the specified commission, in an action upon the contract, the complaint in which sets up two causes of action, one based upon an alleged sale of the property by the owner, entitling plaintiff's to one-half of the commission, and the second based upon the first clause of the contract alleging that plaintiffs being ignorant of the sale by the owner, thereafter found a purchaser and notified the owner thereof, who refused to convey to such purchaser, both causes of action are based upon the same contract, and the facts might properly have been set forth in a single count, the subject of the action being the recovery of the commissions under a single contract for the payment thereof at a certain rate under one set of circumstances, and a different rate under different circumstances, and it is error for the court to require the plaintiffs to elect between the counts, and to rely upon one count only.

Id.—Averment op Pacts Within Knowledge op Dependant—Counts.— Where the facts are peculiarly within the knowledge of the defendant, and cannot be certainly known to the plaintiffs, as to the precise nature and limits of defendant’s liability, before the evidence is all in, the plaintiff may state his cause of action variously in different counts of the complaint, and should not be compelled to elect upon which count he will proceed.

Id.—Sale by Owner op Property—Lease—Option to Purchase. — Where the owner of the property, during the time limited by the contract of agency, executed a lease for a term of five years, with the sole and exclusive privilege to the tenant to purchase the property, such lease, with the privilege of purchasing, constitutes a sale of the property, or a withdrawal of the property from the sale, within the meaning of the contract of agency, entitling the brokers to recover one-half of the specified commission.

Haynes, C. The plaintiffs were real estate brokers at San Jose, doing business as J. E. Rucker & Son. The defendant, Mary Hall, in writing, appointed the plaintiffs her agents for the sale of certain lands, and which authorization contained the following clauses: “The said J. E. Rucker & Son shall have complete control of all sales to purchasers furnished by them, or through their agency, and I agree, in case I shall sell or dispose of such property to any customer furnished by said J. E. Rucker & Son, to pay them three per cent commission on such sales.

“ Should I find a purchaser independent from said J.E. Rucker & Son, or withdraw the property from sale, [427]I agree to pay the said J. E. Rucker & Son one-half of the above commission as compensation for their services in advertising,” etc.

This contract and appointment was made August 24, 1886, and was “ to run for one year and thereafter until withdrawal of same in writing.”

This action was brought to recover commissions under said instrument. The complaint contained two counts, the first based upon the second clause above quoted, alleging a sale by Mrs. Hall, made January 11,1887, and claiming one-half of three per cent commission, amounting to three hundred dollars; and the second count was based upon the first clause, alleging that plaintiffs, being ignorant of the sale above mentioned on the twenty-fourth day of August, 1887, found a purchaser, and notified Mrs. Hall thereof, but that she refused, etc.

The defendants answered each cause of action, specifically denying each allegation of the complaint. The cause was tried by the court without a jury, and findings and judgment went for defendants, and this appeal is from an order denying plaintiffs’ motion for a new trial.

Before any evidence was offered plaintiffs were required by the court, upon defendants’ motion, to elect upon which of the two counts contained in the complaint they would offer evidence and rely for judgment, upon the ground that said counts required different testimony; that evidence which would support one would not support the other. Plaintiffs excepted to the order, and elected to rely upon the first count, and offered no evidence under the second count.

The first cause of action was based upon an alleged sale of the property by Mrs. Hall in January, which, if made, entitled the plaintiffs to one-half of the commission they were to receive in case of a sale made by themselves, Mrs. Hall having retained the right to sell to purchasers not furnished by plaintiffs.

Rucker v. Hall

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