McAlinden v. Nelson

• Decision Date: 05 November 1953
• Court: California Court of Appeals Court of Appeals
• Parties: McALINDEN v. NELSON. Civ. 19778.

Page 627

262 P.2d 627

121 Cal.App.2d 136

McALINDEN v. NELSON.

Civ. 19778.

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

Nov. 5, 1953.

Harold J. Ackerman, Los Angeles, for appellant.

Gross & Svenson, Van Nuys, for respondent.

DRAPEAU, Justice.

The first amended complaint herein alleges that by written agreement of May 11, 1950, 'defendants' employed plaintiff to sell a piece of realty owned by them at a specified price of $25,500, and that they agreed to pay him a commission of 5% of the selling price. On July 8, 1950, the listing agreement was extended for an additional 90 days. The extension was signed by plaintiff and defendant Simeon B. Nelson.

On July 16, 1950, plaintiff procured purchasers, who agreed to buy the listed property for $18,600. On that day, defendant signed a deposit receipt in which he agreed to complete the sale of the property for the offered price and to pay a commission of $930 to plaintiff.

The said complaint further alleges that the buyers were able, ready and willing to complete the purchase; that they and plaintiff have performed their part of the contract, but that defendants have not paid the commission of $930 which sum is now due and owing to plaintiff.

The answer denies (1) that the purchasers 'were willing or ready or able to purchase this answering defendant's interest in his property'; (2) performance of the conditions of the contract; and (3) that the sum of $930 is due and owing.

Defendant admits (1) the execution of the original agreement of May 11, 1950, by him and his wife, Rosalie; (2) the extension thereof by him; (3) the execution of the deposit receipt on July 16, 1950, by him alone; and (4) the nonpayment of the $930.

The answer affirmatively alleges that 'said deposit receipt was never signed by said Rosalie Nelson * * * that plaintiff was aware of the fact and well knew that the property referred to in said deposit receipt was jointly owned by this answering defendant and his said wife, Rosalie Nelson, and that a sale of the entire property could not be made unless the said wife, Rosalie Nelson joined in the sale, and further alleges that the said wife Rosalie Nelson refused to consent to the sale of said real property at the reduced price * * *.'

The trial court granted plaintiff's motion for judgment on the pleadings, and from the ensuing judgment defendant appeals.

It is here urged that the denials and affirmative allegations in the answer raised sufficient issues of fact which, if proved, would defeat plaintiff's cause of action, hence it was error to render a judgment on the pleadings.

'It is elementary that a plaintiff is not entitled to judgment on the pleadings if the answer presents any issue as to the material allegations of the complaint, or if it sets up affirmative matter constituting a defense. 21 Cal.Jur. 237-8. A motion for judgment on the pleadings is in the nature of a general demurrer, and the trial court in ruling thereon must treat the allegations of the challenged pleading as true. MacIsaac v. Pozzo, 26 Cal.2d 809, 161 P.2d 449, and cases cited; 21 Cal.Jur. 240.' Grant v. Aerodraulics Co., 91 Cal.App.2d 68, 73, 204 P.2d 683, 685.

Also, as stated in Agnew v. Los Angeles City, 99 Cal.App.2d 105, 107, 221 P.2d 340, 341: 'Upon a motion for judgment on the pleadings, as on demurrer, the court considers only the pleadings.'

It is well-established law that a broker who has fulfilled the terms of his contract by procuring a purchaser, who is ready, able and willing to buy can recover his commissions even though the vendor refuses absolutely to consummate the purchase or to negotiate with reference to it. In other words, the liability of the owner cannot be avoided by...