Bruner v. Van's Markets
| Decision Date | 28 March 1951 |
| Court | California Court of Appeals Court of Appeals |
| Parties | BRUNER v. VAN'S MARKETS. Civ. 17623. |
Mitchell, Johnson & Bates, Los Angeles, for appellant.
Meserve, Mumper & Hughes, and William Larrabee, all of Los Angeles, for respondent.
Action to recover broker's commission for services rendered in connection with a sale of real property. Defendant appeals from judgment in favor of plaintiff for $5,280.
Appellant (defendant) contends that plaintiff is not entitled to any commission since there was no writing signed by defendant unequivocally showing the employment of plaintiff as required by the statute of frauds.
In January, 1946, defendant, Van's Markets, contemplated the construction of a warehouse, the estimated cost of which at that time was $350,000. On January 31, 1946, the plaintiff, who was vice-president of Nelson Douglass & Co., wrote a letter, as such vice-president, in behalf of said company to defendant wherein that company offered to obtain for defendant a sale and lease-back agreement as a means of financing the construction of a warehouse. In that letter it was stated that the commission payable to Nelson Douglass & Co. for its services 'upon completion and signing of all papers incident hereto' should be 4% of the total amount involved, but in no event should the compensation exceed $12,000. In a letter dated February 11, 1946, defendant accepted the offer of Nelson Douglass & Co. and agreed therein to pay said company for its services 4% of the total amount involved, 'but in no event shall said compensation exceed the sum of $12,000.00.' As a result of the services of Nelson Douglass & Co., acting through its vice-president, the plaintiff herein, the defendant (Van's Markets) and the Occidental Life Insurance Company entered into a written agreement on May 27, 1946, which provided, among other things, (1) that the insurance company would purchase the warehouse when completed and the land upon which it was built at the actual cost of the warehouse and the land, which cost should include the commission of $12,000; and (2) that it would then lease the property to defendant for 40 years, and give defendant an option to repurchase the property at the end of the lease term for $37,500, which amount was the cost of the land. It was estimated therein that the cost of the warehouse would be $400,000. On May 28, 1946, after the signing of the agreement but before the building was completed and before all the documents pertaining to the transaction with the insurance company had been executed, the defendant paid to Nelson Douglass & Co. as broker's commission $12,000 in full payment for all services rendered or to be rendered. In September, 1946, there was a dissolution of the Nelson Douglass & Co.
During the first part of January, 1947, or the latter part of December, 1946, Mr. Garrett, the treasurer of defendant, called plaintiff by telephone and said (according to plaintiff's testimony) that '[W]e find now that the building is going to considerably exceed the original estimated cost and our contracted figure for delivery,' and that he would like for plaintiff to take it up with the officials of the insurance company and ascertain whether they would be willing to make some concession in view of the fact that the costs were exceeding considerably the price for which they were committed to deliver the property, and that the cost would be $100,000 more than the contract price of $400,000. Plaintiff then explained to Mr. Clark, the president of the insurance company, the situation in which defendant found itself, and asked him if he thought the insurance company would be willing to make some concessions. Mr. Clark replied that his company was willing to give the matter consideration, and he (Mr. Clark) suggested that rather than to try to establish a new figure at that time 'it would be better if they deferred consideration of the matter until the completion of the building at which time they would have the property price in its completed state and try to establish a fair value at that time.' Plaintiff then related that conversation to Mr. Garrett, the treasurer of defendant. Thereafter, during the period until September, 1947, plaintiff had various conversations with officers of the insurance company and with Mr. Garrett regarding the matter.
On September 6, 1947, plaintiff went to defendant's office and told Mr. Garrett that plaintiff needed a letter to present to the insurance company in presenting a request for a change in the amount of the purchase price. Mr. Garrett said, 'All right,' and that plaintiff could dictate to Mr. Garrett's secretary approximately what he would like to have included in that letter. Plaintiff then dictated a draft of the letter, which draft was received in evidence as defendant's exhibit D. That exhibit is a sheet of yellow paper with typewriting upon it, and it shows that the letter was to be addressed to 'Mr. J. Brandon Bruner 510 South Spring Street Los Angeles, California.' There was no statement in the draft that any commission was to be paid to plaintiff or anyone for services in connection with the proposed increase in the selling price. Mr. Garrett, as treasurer of defendant, wrote a letter to Mr. Bruner on September 6, 1947, 1 and he testified that said letter was made from the said draft (Exhibit D). At the time that letter was written the warehouse had been completed and the cost of it was known. Also at that time the defendant knew there had been a dissolution of Nelson Douglass & Co. In that letter it was stated, among other things, as follows: (1) '[W]e wish you would ascertain whether or not the Occidental Life Insurance Company is willing to consider a re-appraisal of this property in the light of these new developments, and to consider a change in the sale price to one which is more realistic in view of the actual cost of this project.'; and (2) 'We ask that you take this matter up with the Occidental Life Insurance Company, and, as soon as you are able to determine their position on these two matters, we would appreciate talking with you further.' The schedule of costs which was enclosed in the letter is omitted from the footnote herein. That schedule contained an item of $12,000 for commission, but it did not contain any other item regarding commission.
Plaintiff received said letter of September 6th and delivered it to the insurance company. The insurance company reappraised the property at $576,000. On November 17, 1947, the insurance company and defendant entered into an escrow, and they signed escrow instructions whereby the insurance company agreed to buy the warehouse and land for $576,000, which was an increase of $176,000 in the purchase price. On November 26, 1947, the deed, lease, and other documents required to complete the transaction were executed and the sale was made to the insurance company for $576,000. Thereafter plaintiff asserted that defendant should pay a commission of $8,800.
As above stated, appellant contends that the letter of September 6, 1947, did not constitute a written contract of employment of plaintiff as required by the statute of frauds. He argues that the letter fails to show unequivocally that plaintiff was employed; that the letter shows doubt and uncertainty as to the intention of the parties; and that the letter was not intended to be an employment contract or a memorandum of such a contract. The letter referred to the first resale agreement and to the circumstances under which that agreement was written. Then the letter stated the financial problem with which defendant was confronted, at the time the letter was written, by reason of the fact that the cost of the warehouse was considerably more than the original estimate. Reference was made therein to the increased value of defendant's assets, and it was then stated that the defendant felt that by reason of those changes in its net worth it was in a position to ask the insurance company for an adjustment in the terms of the first sales agreement. It was also stated therein that defendant wanted the sales price of $400,000 (which the insurance company had already agreed to pay) increased to the actual cost of the building as shown by the attached schedule (which was...
To continue reading
Request your trial
-
Peacock Realty Co. v. E. Thomas Crandall Farm, Inc.
...63, 336 P.2d 1028; Pacific Southwest Development Corp. v. Western Pacific R.R., 47 Cal.2d 62, 301 P.2d 825; Bruner v. Van's Markets, 103 Cal.App.2d 135, 229 P.2d 56; Moore v. Borgfeldt, 96 Cal.App. 306, 273 P. The plaintiff, of course, argues for the California approach and it contends that......
-
Beazell v. Schrader
...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 But the instant case differs from the foregoing ca......
-
Franklin v. Hansen
...there is sufficient written memorandum to satisfy the statute of frauds relating to real estate brokers' contracts. (Bruner v. Van's Markets, 103 Cal.App.2d 135, 229 P.2d 56.) See also Caminetti v. National Guaranty Life Co., 56 Cal.App.2d 92, 132 P.2d 318; Herring v. Fisher, 110 Cal.App.2d......
-
Davinroy v. Thompson
...not state the amount of compensation to be paid. Cramer v. Lee Wa Corporation, 109 Cal.App.2d 691, 241 P.2d 550; Bruner v. Van's Markets, 103 Cal.App.2d 135, 229 P.2d 56; Lathrop v. Gauger, 127 Cal.App.2d 754, 274 P.2d 730. Where the memorandum authorizing a broker to sell property required......