Swales v. Barr

MARKS, J. This is an appeal from a judgment for defendant in an action in which plaintiffs sought to recover $1,100 as commission on the sale of a yacht owned by defendant.

L. G-. Swales is a duly licensed yacht broker and O. T. Walkey is a duly licensed yacht salesman working under him.

Wilbur H. Barr was the owner of the yacht Branta, which was anchored at its mooring in Newport Harbor about 1% miles from the place of business of plaintiffs.

J. W. Reekman operated a boatswain’s locker at Newport Harbor. He repaired boats, sold hardware and did an occasional brokerage business. He had done some extensive work for Mr. Barr on the Branta and he knew that Mr. Barr might want to sell it.

On January 3, 1946, Dr. Donald W. Barber contacted' Mr. Reekman and asked him if he knew of a boat he could use or buy. Reekman testified: “And I suggested the Branta to him. He was interested, but I was in no position to show [293]it to him, so I referred him to Mr. Walkey, and I called Mr. Barr (over the telephone) and told him, ‘I sent a party down to Mr. Walkey and if it was all right for Mr. Walkey to show the boat.’ ” And that Barr replied “It is all right, go ahead.”

Dr. Barber went to see Mr. Walkey, who took him out to see the Branta. The boat was locked and Walkey did not have the keys. He telephoned Mr. Barr, telling him his business and that Mr. Beckman had phoned about the boat. Permission was given to show the boat and Walkey obtained the keys from Mr. Barr’s secretary. He did not tell Mr. Barr the name of the prospective purchaser.

After obtaining the keys Walkey took Dr. Barber back to the Branta and they made a thorough inspection of it. Dr. Barber gave Walkey a check for $900 and signed an offer of purchase, reading in part as follows:

“Newport Beach, California

Jan. 3, 1946

“Mr. O. T. Walkey,

“Newport Beach, California

“Dear Sir:

“You are hereby instructed to offer the sum of $9,000.00, payable cash, for the vessel known as the ‘Branta’ now moored in Newport Beach waters.