Dale v. Palmer

• Decision Date: 27 September 1951
• Citation: 106 Cal.App.2d 663,235 P.2d 650
• Court: California Court of Appeals Court of Appeals
• Parties: DALE v. PALMER et ux. Civ. 7953.

Page 650

235 P.2d 650

106 Cal.App.2d 663

DALE v. PALMER et ux.

Civ. 7953.

District Court of Appeal, Third District, California.

Sept. 27, 1951.

Rehearing Denied Oct. 26, 1951.

Hearing Denied Nov. 21, 1951.

Lewis & Lewis, Sacramento, for appellants.

Pease & Lally, Sacramento, for respondent.

PEEK, Justice.

This is an appeal by defendants from a judgment in favor of the plaintiff in an action for damages for breach of an agreement providing for the exclusive listing of certain homes then under construction.

In April, 1947, respondent and appellant Peter Palmer entered into the following agreement:

'In consideration of securing the services of the Dale Real Estate Co. to arrange construction financing for the undersigned contractor and personally introducing him to the manager of the lending agency the contractor agrees to list all houses built by him and financed through this lending institution with the Dale Real Estate Co. Said listing to automatically start when construction begins and continue exclusively and irrevocably with said agent until thirty days after notice of completion has been filed. The commission for selling each house shall be five per cent of the selling price. The selling price shall not exceed the higher of two limits, namely: F.H.A. or Federal G.I. This contract shall remain in full force and effect for a period of one year and all houses started during that period shall become a part of this agreement.

'(Signed) Peter Palmer

Contractor'

'Carlton E. Owen

Herbert R. Dale

Witnesses' Within the following year construction was begun on seven houses, for one of which respondent procured a purchaser and effected a sale, receiving a commission therefor. Shortly thereafter a dispute arose between the parties as to the purchase price to be set for the sale of the remaining houses, and as to the manner in which the respondent had handled the first transaction. Said appellant discharged respondent, obtained the services of another realtor, and, subsequent to the filing of this action, sold the remaining six houses. Respondent commenced this suit for damages for anticipatory breach of the listing agreement, praying damages in the amount of five per cent of the sale price of each house. The trial court found that Peter Palmer had repudiated the above agreement, refused to let respondent sell any of the remaining houses, and engaged another real estate broker to sell the houses. The court further found that respondent was entitled to a commission of five per cent of the purchase price for which the six houses were actually sold, and awarded damages accordingly.

Appellants contend that the agreement here involved is unenforceable, being in violation of section 10176, subdivision (f), of the Business and Professions Code. That section provides, in part, as follows:

'The commissioner may, upon his own motion, and shall upon the verified complaint in writing of any person, investigate the actions of any person engaged in the business or acting in the capacity of a real estate licensee within this State, and he may temporarily suspend or permanently revoke a real estate license at any time where the licensee within the immediately preceding three years, while a real estate licensee, in performing or attempting to perform any of the acts within the scope of this chapter has been guilty of any of the following:

* * *

* * *

'(f) The practice of claiming, demanding, or receiving a fee, compensation or commission under any exclusive agreement authorizing or employing a licensee to sell, buy or exchange real estate for compensation or commission where such agreement does not contain a definite, specified date of final and complete termination.'

Appellants also contend that the agreement in the present case fails to contain a 'definite, specified date of final and complete termination' within the meaning of the said subdivision (f).

In the case of Castleman v. Scudder, 81 Cal.App.2d 737, 185 P.2d 35, 36, this court considered precisely the same question with regard to a nearly identical provision in section 10301, subdivision (f), of the Business and Professions Code. Section 10301, establishes as a ground for the suspension or revocation of a business opportunity broker's license, '(f) The practice of claiming or demanding a fee * * * under any exclusive agreement * * * where such agreement does not contain a definite, specified date of final and complete termination.' (Emphasis added.) There the petitioners sought review of the action of the real estate commissioner in revoking a business opportunity broker's license. The agreements into which the parties had entered contained the clause: 'This agency shall continue 30 days from date hereof and thereafter until three days have elapsed after receipt of written notice from the Owner, terminating this agency, sent by registered mail, or delivered in person to said agent.' We held that the agreements failed to provide a definite, specified date of termination, and in so doing we stated: 'The statute does not refer to a method of computation of the termination date upon the happening of some future event, but rather to the failure to set forth a definite specified date of final and complete termination. * * * By its particular wording section 10301(f) can be construed only to denote a definite date of termination specifically set forth in a contract at the time of its execution by the owner. An interpretation such as is contended for by petitioners if adopted would only perpetuate the very indefinite feature which the...