Lyne v. Bonner

• Decision Date: 23 December 1954
• Citation: 277 P.2d 941,129 Cal.App.2d 743
• Court: California Court of Appeals Court of Appeals
• Parties: Jean LYNE, Plaintiff and Appellant, v. Donald Bowton BONNER, Robert James Bonner, Elizabeth Jane Bonner Edmunds, Defendants and Respondents. Civ. 20521.

Page 941

277 P.2d 941

129 Cal.App.2d 743

Jean LYNE, Plaintiff and Appellant, v. Donald Bowton BONNER, Robert James Bonner, Elizabeth Jane Bonner Edmunds, Defendants and Respondents.

Civ. 20521.

District Court of Appeal, Second District, Division 2, California.

Dec. 23, 1954.

William R. Walsh, Los Angeles, for appellant.

Hampton Hutton, Los Angeles, for respondents.

MOORE, Presiding Justice.

Appeal from a judgment of dismissal after general demurrer to the complaint had been sustained and plaintiff had declined to amend.

The complaint alleged that on September 8, 1953, defendants as tenants in common owned an undivided three-fourths interest in 800 acres of land in Los Angeles County; that defendants then contracted in writing with Messrs. Austin and Ream, real-estate brokers, to sell within 90 days their interests in such land for $76,000 net on terms stated in the contract and appearing in the margin hereof ¹; that on October 22, 1953, plaintiff executed a writing with Mr. Ream, one of such brokers, whereby plaintiff agreed to buy the three-fourths interest of defendants in the 800 acres and paid the sum of $500; that on October 27, 1953, she opened an escrow with a title company, deposited $500 and agreed to deposit in cash $13,750 and her promissory note for $42,750 payable to defendants, to be secured by a trust deed on the realty described in the contract of September 8, 1953; that defendants have at all times since October 27, 1953, refused to deposit their deeds in the escrow or otherwise convey their interests in the land; that on November 12, 1953, plaintiff tendered to defendants the sum of 13,750 and offered to deposit in the escrow her promissory note in the sum of $42,750 payable to defendants and to execute a trust deed on the same 800 acres, securing such note and to do all things required of her by 'said agreement of sale'; that she has performed all the conditions of such agreement required of plaintiff and has been and is ready, willing and able to fulfill the agreement and to cause the balance of the purchase money to be paid; that the 800 acres is located in the city of Los Angeles and is described in the complaint.

A second count follows which emphasizes that while the contract of September 8 allowed the brokers 90 days to make a sale, it alleges that the contract permitted the sellers or the brokers to extend the time for an additional thirty days; but the pleading does not allege an agreement of extension. The absence of such an allegation is fatal. Waterman v. Banks, 144 U.S. 394, 402, 12 S.Ct. 646, 36 L.Ed. 479. She complains that by her offer of January 1, 1954, by opening an escrow on January 4 with $500, by agreeing to deposit $18,500 and to give a promissory note for $57,000, she met the terms of the 'agreement' and bound the seller. The 90-day period expired December 7, 1953. An agreement for sale on January 1 was 24 days late unless the option for extension of 30 days had been exercised. Mr. Ream's writing on January 1 does not prove an extension of time was even discussed between broker and seller.

Moreover, there is no provision in the 'agreement' to sell an undivided three-fourths of the 800 acres. That idea may have sprung to appellant's reasoning from the fact that the fourth owner of the 800 acres did not sign the 'agreement.' It was prepared for all four owners to sign. It was never signed by Mary Evelyn Lewis, one of the four. The complaint makes no attempt to implead the nonsigning owner. By no system of legal logic can it be concluded that an authorization to procure a purchaser of land for $76,000 can be construed to mean that three fourths of the land may be sold for $57,000. The 'agreement' was not executed and could not become obligatory upon any of the owners. Therefore, the complaint fails to allege a cause of action. Anthony Macaroni Co. v. Nunziato, 5 Cal.App.2d 588, 590, 43 P.2d 315; Civ.Code, sec. 1624(4). The agency agreement merely authorized the brokers to produce a purchaser with $76,000. A sale for a lesser sum was without authority. Civ.Code, sec. 1624(5). The brokers had no authority to execute a contract for sale of the land as attorneys in fact for the sellers. Such a power must be in writing signed by the owners. Stemler v. Bass, 153 Cal. 791, 795, 96 P. 809; Civ.Code, sec. 1624(4). The power to bind an owner to a contract, executed by a broker on behalf of the owner, must be so 'clear, distinct and certain, in its meaning to that end as to leave no room for doubting that such is its purpose.' Church v. Collins, 18 Cal.App. 745, 748, 124 P. 552, 553; see Salter v. Ives, 171 Cal. 790, 792, 155 P. 84.

Plaintiff's argument that the case of Duffy v. Hobson, 40 Cal. 240, is outmoded by reason of economic changes since 1870 is...