Augustine v. Trucco

Decision Date09 March 1954
Citation268 P.2d 780,124 Cal.App.2d 229
CourtCalifornia Court of Appeals Court of Appeals
PartiesAUGUSTINE v. TRUCCO et al. Civ. 19878.

Maurice Gordon, Los Angeles, for appellant.

Fred W. Chase, Glendale, for respondents Angelo Trucco and Ida Trucco.

Victor Bewley, Los Angeles, for respondents Paul H. Allen and Margaret Dwyer, also known as Mrs. Edward J. Dwyer.

SHINN, Presiding Justice.

Appeal by plaintiff from a judgment of dismissal entered on the sustaining of an objection by defendants to the introduction of any evidence. The cause went to trial on the third amended complaint and the answers thereto. The objection was sustained on the ground no count of the third amended complaint states facts sufficient to constitute a cause of action.

The third amended complaint contains four counts. In the first count, plaintiff seeks to recover a broker's commission from defendants Trucco for the sale of their real property consummated through defendants Allen and Dwyer. In the second count, plaintiff seeks damages against defendants Allen and Dwyer for allegedly inducing defendants Trucco to breach their contract with plaintiff. In the third count, a common count for labor and services is pleaded against defendants Trucco. In the fourth count, a common count for money had and received is pleaded against all the defendants.

The first count of the third amended complaint alleges:

1. Plaintiff is a licensed real estate broker doing business under the name of R. B. Augustine Co. On November 21, 1949, defendants Trucco, husband and wife, were the owners of a parcel of improved realty in Los Angeles. On that date, defendant Angelo Trucco gave plaintiff, in writing, the exclusive right to sell the property for $72,500. Defendant agreed to pay plaintiff a commission of 5 per cent of the sales price. The employment contract expired on December 1, 1949, ten days later. In executing the contract defendant Angelo Trucco acted for himself and as agent for his wife.

2. (Paragraph V) In July, 1950, defendants Trucco orally modified the agreement whereby the employment was continued as nonexclusive and the selling price was reduced to $65,000. On November 25, 1950, plaintiff procured a written offer from Mr. and Mrs. Angeloff to purchase the property for $65,000; the offer was accompanied with a deposit of $5,000. Plaintiff immediately presented the written offer to defendants Trucco. They stated that they would accept the offer upon obtaining a source in which to invest the proceeds from the sale. On several occasions between November 25, 1950, and February 5, 1952, plaintiff presented the offer to defendants Trucco and each time they stated they had not yet obtained a place to invest the money.

3. On February 5, 1952, defendants Trucco consummated a sale of the property to Mr. and Mrs. Angeloff for $65,000.

The second count reiterates the allegations of the first count and alleges:

1. In November, 1950, and for a long period of time prior thereto, defendant Allen was associated with plaintiff as a real estate broker. In December, 1950, he terminated his association with plaintiff and associated himself with defendant Dwyer, also a real estate broker. During Allen's association with plaintiff, he learned of plaintiff's employment by defendants Trucco to procure a buyer for their property and of the written offer for $65,000 obtained by plaintiff on November 25, 1950, from the Angeloffs. Defendant Dwyer acquired knowledge of the employment and the offer immediately after her association with Allen.

2. In the month of January, 1952, Allen and Dwyer procured a listing of the property from defendants Trucco in the name of Dwyer. Thereafter, Allen and Dwyer presented to defendants Trucco an offer from Mr. and Mrs. Angeloff to purchase the property for $65,000. The offer was accepted and the sale was consummated.

3. Plaintiff, by reason of the matters aforesaid, sustained damages in the sum of $3,250.

The prayer was for judgment against defendants jointly and severally in the sum of $3,250.

At the trial, defendants objected to the introduction of any evidence on behalf of plaintiff on the ground that the complaint did not state a cause of action against them. The objection was sustained. Plaintiff made an offer of proof and moved the court to allow the complaint to be amended by the addition of a fifth and a sixth count which were orally stated.

The proposed fifth count was limited to defendants Trucco. It was identical to the first count except that it included in lieu of paragraph V thereof the following, as stated by counsel: 'That on or about the 2nd day of December, 1949 and on numerous occasions thereafter during the year 1950 the defendants Trucco urged and requested Plaintiff to continue his efforts to procure a buyer for said real property, and Plaintiff pursuant to said request did continue to exert his efforts in attempting to find a buyer for said real property. Subparagraph, that on or about the month of July, 1950, the defendants Trucco orally authorized Plaintiff to reduce the sale price of said real property from $72,500.00, to $65,000.00, and that they would accept said new price upon the basis of one-half in cash and the remaining half to be represented by a first trust deed to be executed by the buyers. And as a sub-paragraph, still part of Paragraph 5, that pursuant thereto and on the 25th day of November, 1950, plaintiff procured one Dan L. Angeloff and his wife, Sadie Angeloff, to make a written offer of purchase of said real property at the price of $65,000.00, said offer being accompanied with a deposit of $5,000.00 as an evidence of good faith. Sub-paragraph, that Plaintiff immediately presented said written offer of purchase and the said $5,000.00 deposit to defendants Trucco; that said defendants stated that they would accept the offer upon procuring a source in which to invest the proceeds from the sale of their property. Subparagraph, that thereafter on several occasions, between November 25, 1950 and February 5, 1952, plaintiff again presented said offer of purchase to defendants Trucco, and on each occasion said defendants stated that they had not yet obtained a place to invest the proposed sale proceeds.' The proposed sixth count was merely a reiteration of the proposed fifth count, but was stated to relate only to defendants Allen and Dwyer.

Defendants objected to the proposed amendments on the grounds that the proposal came too late and that neither the proposed fifth nor sixth count stated a cause of action as against any defendant. The motion was denied. The trial judge expressly stated he did not deny the motion on the ground it came too late, but on the ground that neither the proposed fifth nor sixth count stated facts sufficient to constitute a cause of action.

Plaintiff contends the court erred in sustaining the objections to the reception of any evidence and in denying his motion for leave to amend. He argues that: 1. In July, 1950, there was a valid oral modification extending the time limitation set forth in the written agreement and reducing the sales price of the property, which oral modification became effective upon his executing his part of the oral agreement, bringing the agreement as modified within the purview of SECTION 1698 OF THE CIVIL CODE. 21. He should have been permitted to introduce evidence to show that after December 1, 1949, and during 1950, defendants Trucco waived the written time limitation in which to procure a purchaser by urging and requesting him to continue his efforts. 3. Defendants Trucco are estopped to assert and rely upon the statute of frauds, having received the fruits of his labors. 4. Defendants Allen and Dwyer are liable in damages for inducing defendants Trucco to breach their contract.

'An objection to the introduction of any evidence on the ground that a complaint fails to state a cause of action is in the nature of a general demurrer to the complaint or a motion by a defendant for judgment on the pleadings. * * * An objection by a defendant to the introduction of any evidence may only be sustained where the complaint fails to state a cause of action, and that is the sole question presented to the court. * * * Nothing dehors the complaint may be considered. No defense set up in the answer may be considered. The truth of the allegations of the complaint must be assumed. If the complaint states a cause of action the objection must be overruled.' Miller v. McLaglen, 82 Cal.App.2d 219, 223, 186 P.2d 48, 50.

'On appeal from a judgment sustaining a demurrer to a complaint the allegations of the complaint must be regarded as true. The court must, in every stage of an action, disregard any defect in the pleadings which does not affect the substantial rights of the parties. Code Civ.Proc., sec. 475. 'Pleadings must be reasonably interpreted; they must be read as a whole and each part must be given the meaning that it derives from the context wherein it appears.' Speegle v. Board of Fire Underwriters, 29 Cal.2d 34, 42, 172 P.2d 867, 872. All that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief. Tristam v. Marques, 117 Cal.App. 393, 397, 3 P.2d 947. 'In determining whether or not the complaint is sufficient, as against the demurrer upon the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if, upon a consideration of all the facts stated, it appears that the plaintiff is entitled to any relief at the hands of the court against the defendants, the complaint will be held good, although the facts may not be clearly stated or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.' Matteson v. Wagoner, 147 Cal. 739, 742, 82 P. 436, 438. In passing upon...

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