Miller v. Cortese

DRAPEAU, J.— This is an action to recover a real estate broker’s commission for $20,000. Plaintiff is assignee of the broker, Alden B. Coyne. The cause was dismissed as to defendants Córtese and Bershim and defendant Dinow filed his answer. Thereafter the latter died and the action was revived on motion and a supplemental complaint was served on Celia A. Dinow, as administratrix of the estate of Mike E. Dinow, deceased.

Thereafter, the trial court granted the motion of Celia A. Dinow, as administratrix, etc., for permission to file her amended answer to the complaint and the supplemental complaint, in which she alleged several affirmative defenses to the action, to wit: (a) statute of frauds (Civ. Code, § 1624, subd. 5); (b) expiration of the broker’s listing sued [657]upon; and (c) failure of plaintiff or his assignor to procure a purchaser able, ready and willing to purchase the property.

Mr. Coyne, plaintiff’s assignor, did not testify and was not represented at the trial. Plaintiff testified he bought the claim from Coyne for $100 and agreed to be responsible for certain legal services.

Plaintiff’s appeal from an adverse judgment and from an order denying his motion for a new trial is presented on an engrossed settled statement.

Mr. Alden B. Coyne, plaintiff's assignor, was a real estate broker, operating under the fictitious name of California Auto Court Association. Messrs. Randolph, Hannah and Brown, also real estate brokers, were associated with Coyne. By written agreements, these three men agreed to pay to Coyne for the use of his office, 30 per cent of any real estate commissions received by them.

On September 24, 1946, defendants executed an open listing authorizing California Auto Court Association to sell a piece of property designated as “Hollywood Colonial,” for $600,000. The listing provided for a cash payment of $125,000; a broker’s commission of $20,000, if the sale was made at the given price; and for a period of employment for six months from date of the listing, or until March 23, 1947.

No sale of the property was effected during the period of six months, nor at any time thereafter by plaintiff’s assignor Coyne.

On August 14, 1947, after the expiration of the six-month period, a real estate broker by the name of Pentecost told Mr. Randolph that he had a client named Mrs. Anderson, who was interested in buying a motel. The two men discussed a sale of “Hollywood Colonial” to her. All of her dealings were with Pentecost. She did not know Coyne or Randolph. On August 14, 1947, Mrs. Anderson gave Pentecost a check for $5,000, and on the next day an escrow was opened with the Title Insurance and Trust Company for the sale of the property in question.