Porter v. Fisher

HAYNES, C. Porter, as assignee of one Abbott, brought suit against appellant on several causes of action, among which was one for the sum of $2,500, as commissions claimed to have been earned by Abbott in effecting a transfer of property between appellant Fisher and one J. A. Baxter. The property Fisher conveyed and transferred to Baxter consisted of two hundred and eighty acres of land in Tulare county, together with stock and personal property of a large amount; and the property conveyed and transferred by Baxter to Fisher was one hundred and seven acres of land at Byron, Contra Costa county, together with all the personal property thereon. Abbott claimed that he was employed by Fisher as a broker to sell or exchange his said property, real and .personal, and for which he was to receive a commission of five per cent. His employment, however, as such broker, was not in writing. The cause was tried before the court and a jury, and plaintiff, as assignee of Abbott, recovered on account of the said commissions the sum of $1,000. The gross recovery by the plaintiff was for a larger sum, but no controversy is made here, except as to the recovery of said $1,000. The appeal is from the judgment and order denying a new trial. •Respondent concedes that no recovery can be had for commis[326]sions upon the sale or exchange of the real estate, but contends that the contract for commissions is divisible; that the price of Fisher’s real estate was estimated in the exchange at $30,000 and the price of the personal property at $20,000; and that he is entitled to recover commissions upon the price of the personal property at the agreed percentage, notwithstanding his contract, so far as the real estate is concerned, was void. The complaint alleges that the commissions were earned by Abbott as agent and broker for the defendant “in the sale, exchange, and transfer of certain real and personal property to one J. A. Baxter, which said real and personal property was sold, exchanged and transferred to said Baxter for the agreed price and consideration of $50,000, being $30,000 for real property so exchanged and transferred, and $20,000 for the personal property so exchanged and transferred; that the defendant agreed to pay to G-. Frank Abbott, for his services as his agent and broker in selling and disposing of said property, five per cent commission on the price thereof, to wit, $2,500.” As between Fisher and Baxter, the parties to the trade, there appears to have been no separation of prices between the real and personal property of the defendant alleged in the complaint. ' It is also evident from the statements of the complaint that the undertaking of Abbott was to sell or exchange the real and personal property of Fisher. Appellant contends that the contract was entire, and is not divisible; that as the agreement to pay commissions upon the real estate was void—not being in writing—there can'be no recovery of any part or portion of the commissions.