Dexter v. McManus

GRIFFIN, P. J. Plaintiff-appellant, a licensed real estate broker, brought this action to recover a real estate commission. The complaint sets forth three separate causes of action. One alleged an oral agreement by defendant employing plaintiff to secure a lessee for unimproved real property at Palm Springs; another was a common count for services rendered; and a third was for reasonable value of services performed; all in the sum of $26,050.27. Attached to the complaint as an exhibit is a document or memorandum dated April 30, 1957 reciting:

“To: Mrs. Austin G. McManus, Lessor, and Mr. William Tackett, Lessee

“Subject: Preliminary Agreement for Leasing [description of plaintiff’s property]

“Lease Term: 60 years

“Rental: 7% a year on valuation . . .

“Lessee to pay 1st years rent in advance.

“Rent to start December 1, 1957

"Re-consideration and re-valuation of lease terms after a period of 25 years.

“Inflation Clause: Lessee suggests payment of 15% of Gross rentals, compared to rent, whichever is greater . . .

"Taxes: Lessee to assume taxes on property . . .

“Note: Lessee to deposit $75,000.00 in escrow account as form of security, when lease is signed.

“Approved: Pearl M. McManus, Lessor

“Approved: William C. Tackett, Lessee” (Italics ours.)

The complaint alleges in paragraph 5 that pursuant to the oral agreement plaintiff negotiated for the leasing of said premises and plaintiff procured a lessee suitable to defendant, ready, willing and able to lease the property on the conditions set forth. Defendant denied generally these allegations, except she admits that she and one Tackett did sign the written memorandum, but she denies that it was intended to, or did, constitute a final agreement between defendant and Tackett.

At the trial, plaintiff testified that in January 1957 he had a conversation with defendant, who had lived in Palm Springs for 74 years, in which she said plaintiff was free to work on a [314]