Ryer v. Oesting

VAN FLEET, J. Appeal by defendants from an order denying them a new trial. The action is to recover certain installments alleged to be due plaintiff under a contract in writing between him and defendants which, by its terms, provided that if plaintiff, through his efforts, labor, and services, should procure and obtain for defendants from his father, Dr. Ryer, the owner of certain premises, a lease thereof for the term of three years, commencing on the first day of August, 1890, they would pay plaintiff for his services in securing the lease the sum of four hundred dollars per month during the entire term of such lease; it being alleged that in pursuance of such written contract plaintiff did, by his efforts and services, procure such lease in accordance with the terms thereof.

The answer admitted the execution of the written contract, but denied that the lease obtained by plaintiff was procured thereunder, and alleged in substance that the lease was procured in pursuance of another and verbal agreement made before the execution of the writing.

The evidence showed without substantial conflict that defendants, who were at the time occupying, under lease from plaintiff's father, certain premises in the city of San Francisco as a drugstore, came to plaintiff in May, 1890, and represented that their lease would expire on the 31st of July following; that they desired a renewal thereof, but that they had fallen under the displeasure of Dr. Ryer, and he had positively refused to renew the lease or permit them to remain upon the premises longer than the term of their then existing lease; that their business ■was of great value, the income therefrom being several thousand dollars per month, and the goodwill alone worth more than thirty thousand dollars; that while the business was thus valuable and lucrative in its then location, the removal meant its practical destruction and their ruin. In this dilemma they desired to enlist plaintiffs services to procure an extension of their lease, and they proposed that if plaintiff would undertake to use his good offices with his father in their behalf, and should succeed in procuring an extension of their lease, they would give [566]plaintiff either an interest in the business or its equivalent in monthly payments during the term of the lease, as he might elect. Plaintiff finally consented to use his efforts with his father in an endeavor to secure a new lease for defendants, accepting the proposition for a compensation in monthly payments: and plaintiff immediately set about making the effort to induce his father to renew the lease, interceding with his father on several occasions, and procuring others to do so, and informing him that it would be to plaintiff’s benefit if the lease was made. Defendants’ first desire was a renewal for a term of ten years, but this Dr. Eyer flatly refused, and at first refused to renew the lease for any term, but he was eventually induced by plaintiff, after much and repeated effort, to give defendants a lease for three years, and this defendants agreed to accept. Thereupon plaintiff drafted the agreement counted upon, which in all substantial respects reflects the previous oral understanding of the parties, and, procuring the lease to be signed by his father, took the two papers to defendants to be executed by them. Defendants, after being permitted by plaintiff to read the lease, and finding it satisfactory, executed and delivered to plaintiff the contract, and thereupon plaintiff delivered to them the lease, which was accepted and signed by them. The stipulated payments were regularly made to plaintiff in accordance with the contract down to March, 1892, when defendants, without the knowledge or consent of plaintiff, procured their lease to be canceled by Dr. Eyer, sold out their business, and thereafter refused to further recognize the obligation of their contract with plaintiff, or to make further payments thereunder. Thereupon this action was brought, resulting in a verdict and judgment for plaintiff.