Silva v. Meyer

NOURSE, P. J. Plaintiff was associated with defendant in defendant’s real estate brokerage business, first as a licensed real estate salesman and later as a licensed real estate broker. The- association was terminated on or about May 5,1952. The action is for an amount of $14,907 allegedly due plaintiff from defendant as balance of moneys earned during this relationship over payments received. The court gave plaintiff judgment for $8,900 and defendant alone appeals.

The complaint, filed January 19, 1953, was in two counts, the first a common count for services rendered, the second on an open mutual and running account. Statements of all amounts allegedly earned by plaintiff and of all payments made to him were made part of the latter count. Among the items listed as earned were the following two:

Tract 1122—For lot sales paid directly out of

escrow......................$ 2,500

South Berkeley Creamery deal............. 10,000

The answer denied the material allegations of the complaint and alleged as a separate defense that at the end of their association the parties determined the amounts due or to become due plaintiff by written agreement as follows:

“I agree to pay you $100.00 per lot for 25 lots on Tract 1122, Centerville, or 28 lots, if we build homes on the additional three lots.

“I also agree to pay you $10,000.00 commission on the South Berkeley Creamery property in Centerville. This is to be paid to you at the time or before we get F.H.A. Commitments on any portion of ten acres, or if the property is put to any other use, in payments of $1,000.00 each.

“It is agreed that you have abandoned all interest in the property at 129th Avenue and Doolittle, San Leandro, which is now under litigation. ’ ’

[17]That the amount of $2,500 as to Tract 1122 had been paid; that with respect to the “South Berkeley Creamery property” no F.H.A. commitments had been received and said property had not been put to any use but that defendant had advanced plaintiff the sum of $1,400 on said commissions.

At the trial plaintiff admitted the signing of the above agreement. It further appeared from testimony of defendant heard under section 2055, Code of Civil Procedure, that at the time of the trial there were F.H.A. commitments on 9 or 10 acres and that at the time of the complaint all the tract was leased for agricultural purposes. At the end of plaintiff’s ease plaintiff was allowed to file a supplemental complaint under section 464, Code of Civil Procedure, to add the fact, occurred since the filing of the complaint, that defendant had obtained F.H.A. commitments on a portion of 10 acres of the South Berkeley property. It was further proved without dispute that the agreement of May 1, 1952, had been drawn up by defendant alone. Defendant testified that only $1,100 had been paid on the $10,000 South Berkeley Creamery commission, which was still owing and unpaid to Mr. Silva. Later defendant testified that this was a mistake, that he meant that the balance was unpaid but not yet due. When defendant purchased the land there was barely enough money to pay for it and Silva said, “You can pay me when you use it.” The agricultural use of the land at the time of the complaint was the same as at the time of the agreement of May, 1952. It was agreed therein that plaintiff would get $1,000 whenever a portion of 10 acres was used. There had been no conversation between the parties as to what use was contemplated in the agreement. Defendant also testified that he took the South Berkeley Creamery property in the name of himself and his wife and that after January, 1953, he transferred his interest in it to a third person so that he himself had no interest in it any more.