Ertell v. Lloyd's Food Products, Inc.

PATTERSON, J. pro tem. The plaintiff, a real estate broker, brought an action to recover a commission in accordance with the terms of an agreement signed by the defendant authorizing the plaintiff to sell 3 acres, more or less, of land in Santa Clara County. A portion of the land was improved with a building which had been used as a cannery, and the balance was unimproved. The authorization to sell provided that the agent should have exclusively and irrevocably for a period of 120 days from date the right to sell the property described in the agreement for the sum of $52,-500. It further provided that the defendant pay the agent as commission 5 per cent of the selling price whether the said property was sold by the agent or by defendant, or by another agent, or through some other source, or whether said property was transferred or conveyed during the time set forth. There was also a provision that in the event the property was sold within 30 days after the expiration of the agreement to anyone to whom the broker had shown it he would be entitled to a commission. The authorization was in full force and effect to and including July 21, 1949.

Within the 120 days set forth in the agreement defendant in the early part of July, 1949, without the consent of the plaintiff, leased the improved portion of the property for a period of five years. The balance of the land, 1.8 acres more or less, which was unimproved, was sold by defendant within the 120-day period to one Drew for $5,700. The plaintiff had shown the property to Drew. On July 5th, and before the [617]expiration of the 120-day period, the plaintiff by letter notified the defendant that he had shown this property to Drew as a complete unit and had also mentioned to him a sale of part of the acreage. The letter further stated that he had shown the property to a Mr. Adair and requested that he be given customary protection “as per our exclusive agency agreement.” The parcel on which the cannery was situated was never sold and the plaintiff did not at any time produce a purchaser ready, able and willing to purchase the property. No commission was paid. Plaintiff filed this action upon a common count to recover the reasonable value of his services in the sum of $2,625, which is 5 per cent of the sale price mentioned in the agreement. The court gave plaintiff judgment for the sum of $285 which is 5 per cent of the sale price of the 1.8 acres. The plaintiff appeals from the judgment.

Plaintiff claims the right to recover under the rule that an agent may recover damages for the breach of an agreement granting an exclusive right to sell where the principal by his conduct prevents the agent from selling it. (Fleming v. Dolfin, 214 Cal. 269 [4 P.2d 776, 78 A.L.R. 585].)