Ford v. Palisades Corp.

• Decision Date: 28 December 1950
• Citation: 101 Cal.App.2d 491,225 P.2d 545
• Parties: FORD v. PALISADES CORP. Civ. 17752.
• Court: California Court of Appeals Court of Appeals

Page 545

225 P.2d 545

101 Cal.App.2d 491

FORD v. PALISADES CORP.

Civ. 17752.

District Court of Appeal, Second District, Division 3, California.

Dec. 28, 1950.

Rehearing Denied Jan. 16, 1951.

Hearing Denied Feb. 19, 1951.

Edgar F. Hughes, Raymond, Tremaine, Los Angeles, for appellant.

O'Melveny & Myers, Louis W. Myers, Pierce Works and John Whyte, all of Los Angeles, for respondent.

VALLEE, Justice.

Appeal by plaintiff from an adverse judgment in an action to recover a broker's commission.

September 18, 1944, plaintiff and defendant entered into an agreement in writing which read:

'Mr. Leland M. Ford

15821 Sunset Boulevard

Pacific Palisades, Calif.

Dear Sir:

'In consideration of the services to be rendered by you, we hereby agree to employ you as our agent for the period ending September 6, 1945, to find a purchaser for the so-called beach property, owned by this corporation, consisting of approximately 2411 feet, located on the Roosevelt Highway immediately west of the Will Rogers State Beach, in the City of Los Angeles, legal description of which is attached hereto, and we hereby grant you the sole and irrevocable right to sell said property within said period for the sum of one hundred and seventy five dollars ($175.00) per lineal foot.

'In the event said property is sold within said period, we agree to pay you a commission of 10% of the sales price.

'The sale of the property in any event shall be subject to the approval of the holders of the majority of the outstanding stock of the corporation, and we shall have no liability to you, nor to any purchaser, unless such sale is so approved.

'It is understood that you shall not, without our prior written consent, assign this agency or any of your rights thereunder.'

August 22, 1945, the parties extended the terms of plaintiff's employment and modified the agreement of September 18, 1944, by a writing which read: 'This will confirm that at a meeting of the Board of Directors of this corporation, held on August 7, 1945, a motion was passed extending for seven (7) months the exclusive agency agreement on the 2411 feet of beach frontage owned by this corporation, given to you on September 18, 1944, and originally expiring on September 6, 1945, subject to the elimination of any stated sales price; all other terms and conditions to remain the same.'

The term of plaintiff's employment under the writings expired April 6, 1946. Defendant sold the property to the State of California on October 1, 1947. The complaint alleged that the period of employment was extended by oral agreement and facts which plaintiff claims estop defendant from invoking the statute of frauds. The answer pleaded the statute of frauds. Civ.Code, secs. 1624, subd. 5, 1698; Code Civ.Proc. sec. 1973, subd. 5.

The court found: The employment of plaintiff as set forth in the writings. The employment terminated on April 6, 1946, and was not thereafter renewed or extended. Plaintiff at all times after April 6, 1946, was, and he knew he was, without authority to represent defendant. Defendant made no promise, oral or otherwise, to extend plaintiff's employment or to pay him any commission upon the consummation of any sale subsequent to April 6, 1946. Plaintiff did not rely upon any such promise. On June 21, 1946, plaintiff requested defendant to extend his employment. The request was denied by defendant on August 9, 1946, and plaintiff was notified to that effect on August 10, 1946. Activities engaged in by plaintiff with reference to the subject property, or the sale thereof, subsequent to April 6, 1946, were voluntary and unauthorized insofar as defendant is concerned. The state was not ready or able either to consummate the purchase of the property or to negotiate as to price at any time prior to August, 1947. Plaintiff neither found nor produced the state as a purchaser ready, willing and able to buy the property upon terms acceptable to defendant. Plaintiff was not the procuring cause of the sale which was ultimately negotiated by defendant at a price of $225 a gront foot. Defendant neither waived the expiration date fixed in the writing nor is it estopped to deny such waiver or otherwise. Defendant did not become, and is not, indebted to plaintiff for services rendered. The causes of action asserted by plaintiff are barred by the statute of frauds.

The claim is that the findings from which the court concluded that defendant is not estopped to invoke the statute of frauds are unsupported by the evidence. The claim is groundless. The appeal is argued at great length in appellant's briefs as though we were the trier of fact. Our power begins and ends with a determination as to whether there is any substantial evidence to support the findings. Overton v. Vita-Food Corp., 94 Cal.App.2d 367, 370, 210 P.2d 757.

Mr. Esberg, president of defendant, Mr. Malouf, vice-president, and Mr. Smith, a director, were the active representatives of defendant in the effort to sell the property to the state. The State Park Commission is the agency of the state charged with the acquisition of ocean beaches. Pub. Resources Code, sec. 5015. Plaintiff was at all times aware of the necessity of a written agency agreement. About a week before April 6, 1946, he told Mr. Smith that his contract was about to expire, that he could not collect a commission without something in writing, and that he should have an extension. Mr. Smith did not say anything about keeping the agency alive but told plaintiff to write to the board of directors, which he did on June 21, 1946. Plaintiff talked to Mr. Malouf in April, 1946, about extending his authority. Mr. Malouf asked him if he had talked to Mr. Smith. Plaintiff replied that he had, and that Mr. Smith had suggested he write to the board and 'it seemed like a pretty good thing to do.'

Mr. Esberg told plaintiff on August 10, 1946, that the board had decided not to renew his contract, and that plaintiff then said, "That is too bad, I don't think that is fair,' something to that effect. Then he said, 'Well, now, listen, Esberg, the State Commission has a meeting slated for the 15th of next month at which I feel quite sure this thing is going to be put over, and do you object to my going to that meeting? I said, 'Mr. Ford, I have no objection to your doing anything you want, you are free, white, and 21, but you don't go there as a representative of the company, if you go there you go of your own volition.' So he said, 'How about my commission, Esberg?' I said, 'Well, listen, Mr. Ford, the question of your commission is a matter that you will have to depend entirely upon the attitude and sense of fairness and decency of the Board of Directors, I can make you no promise, I am not in a position to do so if I wanted to, and you will have to depend entirely on what the attitude will be after the sale goes over.'' Plaintiff said, "I am going to be a good fellow, I will help you fellows any way I can." The treasurer of defendant who was present at this conversation testified that 'Mr. Ford asked about his commission in case of a sale of the property to the State, and Mr. Esberg told him he had no authority to extent or to promise him anything, he would have to rely totally on the judgment of the board of directors as to whether he would be compensated if and when the property was sold.' Plaintiff's testimony as to this conversation was to the same effect.

Plaintiff testified that on a number of occasions after August 10, 1946, he asked Mr. Smith and Mr. Malouf for a written extension. He was not given one. The State Park Commission had a meeting on January 31, 1947. A few days before the meeting, plaintiff called Mr. Malouf and asked whether he thought he (plaintiff) should attend the meeting. Mr. Malouf testified he told him 'he no longer represented the corporation so I couldn't tell him to attend the meeting as our agent, and I wouldn't, but what he would do as a private citizen was up to him, the Park Board meetings were public, and anybody could attend them.' Plaintiff replied, 'Well, I will go to the meeting anyway.'

Mr. Malouf and Mr. Smith each testified that he did not at any time tell plaintiff that his written agreement should or would be extended; or that he was not to worry about his commission; or that his commission would be paid whether he had a writing or not; or that there was no reason why his extension should not be granted; or that the company would give him an extension; or that he could trust the company with reference to the matter of his commission or of obtaining an extension; and that he did not ask plaintiff to do anything on behalf of the corporation after April 6, 1946. Mr. Smith also testified that on June 19, 1946, he told plaintiff that he (plaintiff) was 'through with the company'; and that about August 10, 1946, plaintiff 'informed me that Mr. Esberg had informed him the corporation had denied an extension. * * * I said, 'Yes, that is right.' And he says, 'Well, Andy, I have had forty-four lawsuits on commissions. * * * And I expect to get a commission on this deal.' I said, 'Lee, you have no agreement, you have made no sale.' And he sayd, 'Well, I will sue the corporation.'' Prior to the January meeting of the State Park Commission, plaintiff called Mr. Smith and said he wanted to go to the meeting. Mr. Smith told him 'he didn't represent the corporation, he had no authority whatever, if he did go he did it on his own as a citizen and a taxpayer,' and 'I told him that he was not to go on our behalf to the January 31st meeting, he did not represent us, he had no authority to act for us, the Board of Directors had denied him any authority to act on behalf of the Palisades Corporation.' From time to time after April 6, 1946, plaintiff called Mr. Smith and asked what was going on. Mr. Smith told him, 'Well, Lee, I don't know why you are working, you have no authority, you do not represent the Palisades Corporation.'

The State Park Commission...