Quitzow v. Perrin

California Supreme Court Mar 10, 1898 No. S. F. No. 703Published

Before: Chipman

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Holding. The court affirmed the judgment for the plaintiff regarding the underlying debt but modified the judgment to strike the award of costs, as the recovery was for less than $300 and therefore did not entitle the plaintiff to costs under the Code of Civil Procedure.

Issues

Whether the evidence supported the jury's verdict for commissions and expenses.
Whether the trial court erred in awarding costs to the plaintiff when the judgment was for less than $300.

Disposition. modified

Quotations verified verbatim against the opinion

“The court had no authority to allow costs, as the judgment was for less than three hundred dollars.”

“We think the judgment should be modified by striking out the item of costs allowed, and otherwise to stand as entered.”

Synopsis

Commissions op Real Estate Agent—Sale and Exchange of Lands—Re-conveyance of Greater Part upon Disapproval—General Verdict foe Reduced Commissions.—In an action by a real estate agent to recover commissions upon the sale and exchange of lands, under a contract providing that commissions were to be earned at the time when actual transfer by deeds of conveyance was executed, where it appeared that conveyances were executed between the employer and a purchaser procured by the agent, for a large consideration, but upon • disapproval by the employer of the lands received in exchange, ■the greater part of the lands were reconveyed, a general verdict for the plaintiff for greatly reduced commissions, is to be accounted for by the intention of the jury to treat the lands reconveyed as® not the subject of commissions earned, and where it appears that the jury might have been justified in granting the whole of the commissions claimed under the contract, the defendant has no ground of complaint against the verdict for the reduced amount.

2d.—Expense of Procuring Abstract—Reasonable Charge—Schedule of Rates.—The real estate agent was entitled to recover a reasonable sum. paid for procuring a necessary abstract of title for the benefit of his employer; and where the sum paid therefor appears to be reasonable, the fact that the searcher of records, who was paid for such abstract, based his charges upon a schedule of rates charged for such service by members of a real estate board, and in accordance with its rules and customs, and that evidence of such schedule of rates was received as part of the testimony of such searcher of records is immaterial, and such evidence, even if erroneous, is without apparent injury.

3d.—Costs—Recovery Less than Three Hundred Dollars—Jurisdiction— Review of Orders.—The court has no authority to grant costs in an action for the recovery of money, where the recovery is less than three .hundred dollars; and when the judgment for less than that sum allowed costs, but did not fix the amount, and this was done afterward, upon a motion to retax costs, and after the court had stricken out the cost bill, the subsequent orders were proceedings relating to the judgment and became part of it, and the error in allowing costs may be corrected upon appeal from the judgment, by striking out the costs allowed.

CHIPMAN, C. Action for $2,700 alleged to he due plaintiff from defendants as commissions for the sale and exchange of certain lands belonging to defendants, and also for $163 incurred by plaintiff as expenses in preparing abstract and obtaining data regarding certain hotel property in the city of Chicago, at defendants’ request. The complaint and answer are verified. A demurrer to the complaint was overruled.

The cause was tried by a jury. Judgment of nonsuit was entered as to defendant E. B. Perrin, and verdict given for plaintiff against the defendant Robert Perrin for the sum* of $357.40, upon which judgment was entered; "with said plaintiff’s costs and disbursements incurred .... retaxed by court at $197.37.” The appeal is from the judgment and from an order denying motion for new trial, and is here on a statement of the case.

The complaint alleges that defendant E. B. Perrin was engaged in the business of buying, selling, and exchanging lands in the county of Fresno; that defendant Robert Perrin was the agent and partner of said E. B. Perrin, and as such agent and for himself executed to plaintiff in writing the following agreement:

"San Francisco, May 9, 1894.

“We hereby agree to pay to August Quitzow 3-£ per cent commission for acting as our agent and attorney in trading Fresno county lands for any real estate we may approve of, said commission to be due at the time actual transfer by deeds of con[257]veyance are executed. If ho deeds of conveyance are executed, or actual transfers of property made, there will be no commission earned. ROBERT PERRIN.”

That after the delivery of said contract to plaintiff, to wit, on May 10,1894, plaintiff brought to the office of defendants in San Francisco one B. H. Hellen of Chicago and introduced him to defendants for the purpose of selling or trading to said Hellen said Fresno lands; "that thereafter said Hellen, or parties represented by him, purchased or traded from said defendant 2,080 acres of said lands, all of the value of $108,000, and that said Hellen did, on or about the fourth day of June, 1894, receive a deed or deeds of conveyance of said lands from said defendants.” It is further claimed that defendants were indebted in the sum of $162 for preparing abstract, etc. Defendants admit the execution of the agreement, but allege that it was signed by Robert Perrin acting for himself alone. The answer admits the delivery of deeds on June 4th to Hellen, but alleges that it was upon certain conditions, to wit: That he, Hellen, had deeds from certain parties, the owners of certain lands in Missouri, Minnesota, Michigan and North Dakota, which he proposed to deliver in exchange, but that Hellen’s representations were false and fraudulent; that defendant Robert Perrin left with Hellen a deed to certain Fresno county lands, with the understanding that he, Perrin, “was not conveying the lands described in said deed and was not to be used by said Hellen for any purpose whatever until the said defendant, Robert Perrin, had examined and ascertained the value of said lands and had satisfied himself fully as to whether said deeds received by said defendant, Robert Perrin, from said Hellen were genuine and conveyed the legal title,” and he, Perrin, had approved the same and had ascer- . tained the value of the lands, etc., that defendant, Robert Perrin, immediately thereafter made investigation and learned that the deeds delivered by Hellen were fraudulent and void, and defendant so notified Hellen, and demanded the return of the deeds and disapproved said title. There is no allegation that plaintiff had any knowledge of the alleged fraud of Hellen, or of the notice served upon the latter by defendant.

Quitzow v. Perrin

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