California Auto Court Ass'n v. Cohn

• Decision Date: 22 June 1950
• Citation: 98 Cal.App.2d 145,219 P.2d 511
• Court: California Court of Appeals Court of Appeals
• Parties: ., v. COHN et al. Civ. 17432. District Court of Appeal, Second District, Division 1, California

Page 511

219 P.2d 511

98 Cal.App.2d 145

CALIFORNIA AUTO COURT ASS'N, Inc., v. COHN et al.

Civ. 17432.

District Court of Appeal, Second District, Division 1, California.

June 22, 1950.

Reynolds, Painter & Cherniss, Los Angeles, for appellant.

George S. Gordon, Los Angeles, for respondents.

WHITE, Presiding Justice.

This appeal is from a judgment rendered by the trial court pursuant to an order sustaining a general and special demurrer of defendants Ostroff and Marks to plaintiff's amended complaint without leave to amend. The complaint is for damages arising out of an alleged conspiracy of defendants to deprive plaintiff corporation of a real estate broker's commission.

The complaint charged that plaintiff is a real estate broker and that in January, 1948, at the request of defendant Jack Marks, plaintiff showed said Jack Marks a number of motels that plaintiff had listed for sale. On November 26, 1948, defendant Max Cohn employed plaintiff by written agreement whereby the latter was to sell the Mohawk Motel, of which defendant Max Cohn was then the owner, for $78,000, plaintiff to receive a five per cent commission or $3,900. Plaintiff immediately commenced advertising the motel for sale. December 4, 1948, plaintiff introduced defendant Marks to defendants Max Cohn and Mary Cohn, husband and wife, who, together with plaintiff's agents, showed defendant Marks the Mohawk Motel. Defendant Marks stated that he was interested in the motel but before purchasing it, he wished to consult with his relatives and that he would contact plaintiff immediately if he and his relatives decided to buy it. The complaint further alleged that defendant Marks then consulted defendant Naomi Marks, his wife, and defendants Ostroff, his father-in-law and mother-in-law, and that all of the defendants, knowing that plaintiff was entitled to a commission and in order 'to unlawfully cheat, wrong and defraud plaintiff out of a commission of $3900.00,' entered into a conspiracy, and without the knowledge or consent of plaintiff, negotiated together and directly with each other to place the title of the Mohawk Motel in the names of defendants Ostroff at a price of $74,100 ($78,000 less the commission of $3900 due plaintiff). That the defendants opened an escrow on December 8, 1948, wherein defendant Cohn sold the Mohawk Motel to defendants Marks and Ostroff, title being vested on December 16, 1948, in the names of defendants Ostroff in order to make it appear that they were the bona fide purchasers thereof, but that in reality defendants Ostroff hold it in trust for defendants Marks who are the true purchasers. That plaintiff continued to advertise the motel and to show it to prospective purchasers with the consent of the Cohns until the 16th of December, when plaintiff learned through sources other than the defendants of the alleged fraudulent transaction between them. That on December 16th defendants Marks commenced operating and managing the motel and referred to it as their own. That by reason of their acts, defendants unjustifably interfered with plaintiff's right to pursue its lawful business, effected a breach of the contract between plaintiff and defendant Max Cohn, and deprived plaintiff of its commission of $3,900.

Defendants Ostroff and Marks demurred generally to the complaint on the ground that it failed to state a cause of action, and specially, on the grounds of ambiguity, uncertainty and unintelligibility, which demurrer was sustained without leave to amend and judgment entered pursuant thereto. The action against defendants Cohn is still pending in the trial court. Plaintiff has appealed from the judgment in favor of defendants Ostroff and Marks.

Appellant contends that a cause of action for loss of commissions exists against third persons in favor of a real estate broker, who is deprived of such commissions as a result of a conspiracy between such persons and the broker's employer, and in support of such contention appellant points out:

(1) That the right to pursue a lawful occupation is a fundamental right which courts protect;

(2) That the right to perform a contract and to obtain the benefits and profits therefrom is a property right protected by law; and

(3) Unjustifiable interference by a third party with contractual obligations is actionable.

Respondents admit that point (1) is a general maxim of law but simply state that 'nothing cited and nothing in the complaint indicates any interference with the plaintiff's right to pursue its occupation of real estate broker.' Assuming the facts alleged in the complaint to be true (and the demurrer admits the verity of the vital allegations of the complaint, Krigbaum v. Sbarbaro, 23 Cal.App. 427, 138 P. 364, it is too apparent to merit further discussion that respondents did interfere with plaintiff's pursuit of its occupation as a real estate broker.

As to point (2), respondent contend that their conduct was privileged as a legitimate exercise of their own right to purchase property directly from the owner, citing Sweeley v. Gordon, 47 Cal.App.2d 385, 118 P.2d 16, 842. The case of Sweeley v. Gordon involved an oral contract of employment and the defense of the statute of frauds and is not pertinent to the issue here involved.

Respondents argue that point (3) is applicable only if there was a definite and settled contract and the means of interference was by an unlawful action. Respondents then state...