Bunch v. Henderson

SHEPARD, J. This is an action to recover a real estate broker’s fee. After plaintiff rested his case the trial court granted a nonsuit. Plaintiff appeals from the judgment entered for defendants.

When considering a motion for nonsuit it is the duty of the trial court to give to plaintiff’s evidence its full legal weight, to disregard all evidence conflicting therewith, and to give plaintiff the advantage of every legitimate inference that may be drawn from the evidence. After having done so, if there is any evidence of sufficiently substantial character to support a verdict in plaintiff’s favor the motion for non-suit must be denied. Thus, when an appeal is from a nonsuit, the appellate court must view the evidence in the light most favorable to the appellant. (Raber v. Tumin, 36 Cal.2d 654, 656 [1] [2] [226 P.2d 574].)

The rule is the same whether the trial is before the court with a jury, or before the court alone. (Lasry v. Lederman, 147 Cal.App.2d 480, 488 [10] [305 P.2d 663].)

Viewing the evidence in this light, it appears that on November 22, 1954, defendant Henderson signed a broker’s real estate listing with plaintiff’s employer assignor for the sale of 74 acres of land near Highland, California. Plaintiff [114]produced a prospective buyer named Ralph Padulla, showed him the property, and introduced him to defendant, making a suggestion for segregated sale of an area 100 by 200 feet containing the principal improvements in order to pay off an encumbrance. No decision was then reached by Padulla. Defendant later sold this property to one Edward Norris and plaintiff was informed of this by defendant near the end of December, 1954. This sale was within the time limit expressed in the plaintiff’s brokerage agreement. Plaintiff at no time contended that the brokerage agreement was exclusive, and at the trial testified that it was a “non-exclusive” or “open” listing, and that plaintiff understood by their agreement that defendant had the right to sell the property himself or through another broker without paying any commission to this plaintiff.

In February, 1955, plaintiff was at a meeting of realtors at the office of the Southwest Management Company (where Padulla worked) and met a Mr. C. E. Justice, who worked in the same office as Padulla. Mr. Justice told plaintiff something about the defendant’s property, apparently attempting to interest plaintiff in selling it. Plaintiff did not know of, nor offered any proof of, any contractual relationship between Justice and Padulla. Justice apparently was not available for testimony at the trial, and Padulla had died sometime previous thereto.