Mutascio v. Bartolucci

WOOD (Fred B.), J. Plaintiff brought this action against the defendants, alleging two causes of action'; one, for $1,026 as compensation for services rendered at the agreed rate of $400 a month, and the other, for $2,000 as the reasonable value of services rendered at the request of the defendants. Upon the conclusion of plaintiff’s case in chief, the defendants moved for and the court granted a nonsuit as to each of the counts. Plaintiff appeals from that portion of the order granting the nonsuit as to the second count and the defendant bank. He does not appeal from the portions of the order that relate to the first count or to the individual defendants.

[701]The sole question is whether or not it is competent for plaintiff to prove an oral agreement between him and the defendant bank for the payment to him of a 2 per cent commission for his services and the use of his liquor licenses in purchasing for the bank 100,000 gallons of sweet wine. The parties executed a written agreement which dealt with this transaction but did not therein provide for payment of a commission to plaintiff.

It appears that the defendant bank was engaged in selling certain wine pledged to the bank by the Oakville Winery to secure an indebtedness of the winery to the bank. In the course of time, the only wines remaining unsold were dry wines. Under prevailing market conditions it was not feasible to sell them except in conjunction with the sale of sweet wines. After some negotiations an arrangement was made for the acquisition of 100,000 gallons of sweet wines by the use of certain licenses which the plaintiff had and which the bank did not have. These negotiations, which took place during October, 1947, resulted in a written agreement dated October 29, 1947, executed by California Grape Products Corporation as first party, by plaintiff J. Alfred Mutascio, as second party, and defendant The Anglo California National Bank of San Francisco, as third party. The first party agreed to sell 100,000 gallons of California sweet wine at 50 cents per gallon or the total sum of $50,000, and the second party agreed to buy the same. The third party agreed to pay the first party the $50,000 as the purchase price for the wine, on the condition that title and possession of the wine would remain with the first party, subject to the direction and control of the third party until the third party should notify the first party in writing that the second party had paid the third party the full purchase price or had been released from the obligation to do so by the third party. The second party agreed to execute a nonnegotiable demand note payable to third party and secured by the wine. First party agreed to deliver the wine to second party or to such person as third party should designate. Third party agreed to credit second party with payment upon the note for such portion of the wine as third party should fail within six months to direct first party to deliver to second party. Second party agreed to use his best efforts to dispose of the wine delivered to him by first party upon written instructions of third party. Third party agreed from time to time to release to second party upon trust receipts such amounts of the wine as should be determined by third party;