Lindley v. Fay
Before: Temple
Synopsis
Real Estate Bbokee—Commissions upon Sale—Reasonable Compensation—Pleading—Gbnebal Demubbeb to Complaint — Ambiguity — Teems op Employment.—Where the complaint in an action by a real estate broker for the recovery of commissions upon a sale of real estate alleged employment of plaintiff by defendants, to sell certain lands, and an agreement to pay him a reasonable compensation for his services, provided he should succeed in selling the same on terms satisfactory te the defendants, and that he found a purchaser who entered into an agreement in writing with the defendants for sale of the lands, in which writing defendants also agreed to pay the plaintiff the regular commissions out of the first moneys received, the question whether the complaint is ambiguous or uncertain as to the terms of the employment is not raised upon general demurrer to the complaint.
Id.—CONSTEUOTION OF COMPLAINT—CONTBACT ALLEGED—RECITAL IN WbITTEN Agbeement—Vabiance.—Only one contract is averred in such complaint, and that is to find a purchaser upon terms satisfactory to the defendants, for a reasonable compensation, and the statements as to the contents of the written agreement between the purchaser and the defendants is a mere recital, which does not help out or vary the terms of the alleged employment; and where there is no proof of the contract alleged, the contract recited in the writing is not, so far as concerns the compensation, the contract averred in the complaint.
Id.—Contbact to Pay Commissions out of Fibst Moneys Received—Failuee to Consummate Contbact.—Under a written contract to pay the commissions of a broker out of the first moneys received, the broker is not entitled to compensation when he finds a purchaser ready, willing, and able to purchase on the prescribed terms; but there must be a sale and a first payment to entitle him to recover; and where the sale was not consummated, by reason of the purchaser not accepting the title, and the alleged contract was not executed so as to bind the parties, and no sale was in fact consummated, and the purchaser invested elsewhere, the broker can recover nothing.
Id.—Obdinaby Contbact fob Commissions—Statute of Fbauds—Mbmobandum.—Under an ordinary agreement that a broker is entitled to commissions when he furnishes a purchaser, able, ready, and willing to buy, a memorandum in writing, signed by the vendor and disclosing the terms of the contract, is sufficient to satisfy the statute of frauds, though the contract of purchase was not so executed as to bind the parties.
TEMPLE, J. This action was brought to recover a broker’s commission for the sale of real estate. The complaint charges that on or about April 17, 1894, defendants employed plaintiff to sell certain lands, and agreed to pay him a reasonable compensation for his services, provided he should succeed in selling the same on terms satisfactory to defendants.
It is then averred that he found a purchaser on the 18th of April, 1894, who was ready, willing, and able to purchase on terms satisfactory to defendants. The purchaser, J. E. Carr, on that day entered into an agreement in writing with defendants whereby they agreed to sell the land for thirty-six thousand dollars, and in said writing defendants also agreed to pay plaintiff the regular commissions out of the first moneys received.
Then follows an allegation that defendants, without cause or excuse, refused to carry out their agreement with Carr, but returned to Carr his note for five hundred dollars, which had been put up by him as a forfeit. Also that the regular commission for finding a purchaser for a lot of the kind and description, and for the purchase price aforesaid, is nine hundred dollars, which is a reasonable compensation for the service.
A general demurrer was interposed to the complaint, and under it defendants now attempt to raise the point that the complaint is ambiguous or uncertain as to the terms of the employment. This objection, however, is not raised by a general demurrer.
The defendants denied the employment; that any services were rendered by plaintiff; that any sale was made to Carr; and, also, that any written contract was executed in which they agreed to pay plaintiff commissions. But the defendants admit that on the 17th of April, 1894, plaintiff came to defendants with J. E. Cair for the pretended purpose of purchasing the property and did enter into negotiations for that purpose, and did attempt to procure an agreement from defendants that they would pay him a commission in the event of a sale to Carr. But defendants deny [241]that they entered into any agreement in writing, or into any kind of an agreement to pay commissions except in case of a sale, and that was not in writing and did not bind the defendants. They then aver that no sale Was ever made to said J. E. Carr.
The evidence shows no valid agreement employing plaintiff to find a purchaser upon the terms set out in the complaint. There was in fact no agreement in writing by which plaintiff was employed to negotiate a sale in any terms whatever. The statute of frauds is pleaded, and one question here is whether a contract has been made out under section 1624 of the Code of Civil Procedure.
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