Beazell v. Schrader

• Decision Date: 14 May 1963
• Citation: 30 Cal.Rptr. 534,59 Cal.2d 577,381 P.2d 390
• Court: California Supreme Court
• Parties: , 381 P.2d 390 Howard L. BEAZELL, Plaintiff and Appellant, v. Eugene SCHRADER, Defendant and Respondent. L. A. 27195.

Page 534

30 Cal.Rptr. 534

59 Cal.2d 577, 381 P.2d 390

Howard L. BEAZELL, Plaintiff and Appellant, v. Eugene SCHRADER, Defendant and Respondent.

L. A. 27195.

Supreme Court of California, In Bank.

May 14, 1963.

Milton Zerin, Beverly Hills, for plaintiff and appellant.

Thomas E. Garcin, Sherman Oaks, for defendant and respondent.

PEEK, Justice.

Plaintiff appeals from an order which we construe to constitute, in part, a judgment of dismissal following the sustaining of a demurrer without leave to amend in an action wherein plaintiff seeks to recover a $10,000 commission on an oral agreement for his services as a real estate broker.

The first amended complaint herein alleges the making of the oral agreement for plaintiff's employment to sell defendant's apartment building; that plaintiff was to be compensated at the rate of 5 per cent of the sales price; that plaintiff obtained a purchaser to whom defendant sold the property for $200,000; that defendant signed written escrow instructions which provided for the payment of a commission of $2,500 to plaintiff, and that plaintiff did not consent to the reduction of the commission from $10,000 to $2,500.

Plaintiff appealed from the order sustaining the demurrer, which order is nonappealable and the appeal was dismissed. (Beazell v. Schrader, 205 A.C.A. 740, 23 Cal.Rptr. 189.) Thereafter an order entitled 'Order Sustaining Demurrer Without Leave to Amend' was made and filed, wherein it is provided: 'IT IS ORDERED that the demurrer to the first amended complaint of plaintiff is sustained without leave to amend; and that plaintiff take nothing from defendant.'

It is settled that '(w)hen a demurrer to a complaint has been sustained without leave to amend, the only judgment which properly may be entered is a dismissal of the action.' (Stafford v. Ballinger, 199 Cal.App.2d 289, 298, 18 Cal.Rptr. 568, 573; Berri v. Superior Court, 43 Cal.2d 856, 859-860, 279 P.2d 8.) For purposes of this appeal we will deem the foregoing order to incorporate an order of dismissal, and will interpret plaintiff's notice of appeal as applying to the dismissal. The order insofar as it sustains the demurrer, of course, is nonappealable. (Tellefsen v. Key System Transit Lines, 187 Cal.App.2d 44, 9 Cal.Rptr. 299.)

There is no dispute that plaintiff is entitled to the $2,500, which amount is below the jurisdictional limit of the trial court. The parties have stipulated that if plaintiff's claim is to be so limited, the demurrer was properly sustained on the ground that the superior court lacked jurisdiction.

Plaintiff's sole contention herein is that the escrow instructions constitute a sufficient writing to satisfy the statute of frauds ¹ and hence justify the receipt of parol evidence as to the real agreement between the parties. However, he concludes his petition, and properly so, with the concession that prior to the execution of the escrow instructions defendant was free of 'any enforceable' claims on the part of plaintiff.

The question herein is: Where a party to a commission agreement relies upon a particular writing of the other party as a 'note or memorandum' in satisfaction of the requirements of the statute of frauds, may he introduce parol evidence to show that the writing incorrectly states the amount of commissions as theretofore agreed upon by the parties?

Signed escrow instructions subscribed by the party to be charged and directed by him to the escrow agent have where sufficient in content, been held to satisfy the statute of frauds. (Coulter v. Howard, 203 Cal. 17, 262 P. 751.) A memorandum is deemed sufficient if it shows the employment relationship between the parties; neither the amount of the commission nor a specific promise to pay the same need be expressed in the memorandum. (Moore v. Borgfeldt, 96 Cal.App. 306, 313, 273 P. 1114.) In the absence of any agreement as to compensation a reasonable commission may properly be inferred, or where there has been a parol agreement as to compensation evidence thereof is admissible to establish the agreed amount. (Bruner v. Van's Markets, 103 Cal.App.2d 135, 141, 229 P.2d 56; Caminetti v. National Guaranty Life Co., 56 Cal.App.2d 92, 132 P.2d 318.)

But the instant case differs from the foregoing cases in that the escrow instructions do provide for a fixed commission in precise and definite terms. In this respect, at least, no ambiguity appears, no construction is necessary and no extrinsic matters are referred to or incorporated into the writing. Without question if plaintiff is permitted to establish a different agreement than that evidenced by the escrow instructions his purpose and the effect of such a showing would be to vary and contradict the terms of the document which he urges as a sufficient memorandum, or to show a different contract than that to which such memorandum relates.

The contention is advanced that surplus provisions in a memorandum may be disregarded or corrected without doing violence to the statute, and that hence the instant provisions for commission may be treated as surplusage since the claimed memorandum would have been deemed sufficient without it. But certainly a definite and specific limitation on compensation set forth in the memorandum by the one to be charged manifestly is not intended as surplusage. It must be presumed that defendant intended to obligate himself for the commission stated, and the escrow instructions cannot realistically be construed as a memorandum of any other obligation assumed by defendant.

Although there are apparently no cases directly in point, a similar situation was considered in Smith v. Frans Nelson & Sons, Inc., 214 Cal. 295, 5 P.2d 427. In that...