Beckerman v. Huteson

WOOD (Parker), J. Plaintiff commenced this action as assignee of Herman Cannon, a real estate salesman, to recover commissions allegedly due the salesman from defendant, a real estate broker. Defendant’s motion for nonsuit was granted. Plaintiff appeals from “the order of nonsuit and judgment for costs. ’ ’

At the trial the depositions of Cannon and defendant were received in evidence, and it was stipulated that said “depositions may become part of the record on appeal in lieu of the reporter’s transcript of the testimony. ’ ’ Those depositions, not having been included in the reporter’s transcript, nor having been sent to this court, this court ordered that the depositions be transmitted here. They have been considered as a part of the record on appeal.

Cannon was employed by defendant as a salesman from May 18, 1951 to September 12, 1951. At the time he became so employed, he and defendant made an oral agreement to share expenses and to divide commissions. While he was employed by defendant they consummated two deals and divided the commissions. Also while he was so employed they made efforts on behalf of Liberty Building Company to purchase 250 acres of land from the Pomona Valley Company but the transaction was not consummated. On June 7, 1951, Liberty paid $1,000 to defendant, and defendant paid one-half thereof to Cannon.

Cannon testified that defendant was drinking heavily and was unable to work steadily; in the early part of September he told defendant that he wanted to go with another broker and wanted his license transferred, and the defendant “agreed to that.” Then he left defendant’s place of business and was employed -by another broker. He testified further that he was not discharged by defendant—he left of his own accord; prior [81]to leaving the employ of defendant, the defendant did not tell him that the deal for the Pomona property had fallen through; he (Cannon) did not know whether it fell through—it was a question of not being able to get financing.

Defendant testified, under section 2055 of the Code of Civil Procedure, that in October or November, 1951, the Pomona Valley Company was dissolved and its assets were divided among the shareholders; in December, 1951, defendant sold about 49 acres of the property (which was then owned by shareholders) to Liberty for $132,300; also in December he sold the remainder of the property (owned by shareholders) to Hillcrest Investment Company for $448,700; he received commissions on those sales. The negotiations on behalf of Liberty Building Company were conducted by Norman Feintech. The negotiations on behalf of Hillcrest Investment Company were conducted by Norman and Irving Feinteeh. Defendant testified further that, while Cannon was employed by him, Norman Feinteeh, vice president of Liberty, asked defendant if he could locate some property for that company; when defendant and Cannon learned about the Pomona property they told Liberty about it; Norman Feinteeh said they could not pay more than $2,000 an acre for it; defendant obtained information regarding the property and submitted a report to Liberty on May 19, 1951; thereafter executives of Liberty told defendant that there would be no need to look at the Pomona property again—the sellers were talking about $3,000 an acre and would not accept their offer; thereafter defendant talked with a representative of Pomona Valley Company, who said that the company would be willing “to talk $2,300” an acre; on June 7, 1951, Liberty rejected “the deal” and gave defendant a check for $1,000, and he gave one-half of it to Cannon; on August 24, 1951, Norman Feinteeh told defendant that Liberty wanted acreage near Van Nuys; at that time Cannon said that defendant was a fool to waste any more time with Liberty Building Company, and that defendant had no chance to make a deal—as far as he (Cannon) was concerned he would not waste any more time with them.