Owen v. National Container Corp. of Cal.

• Decision Date: 22 December 1952
• Citation: 251 P.2d 765,115 Cal.App.2d 21
• Court: California Court of Appeals Court of Appeals
• Parties: OWEN v. NATIONAL CONTAINER CORP. OF CALIFORNIA et al. Civ. 19099.

Page 765

251 P.2d 765

115 Cal.App.2d 21

OWEN v. NATIONAL CONTAINER CORP. OF CALIFORNIA et al.

Civ. 19099.

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

Dec. 22, 1952.

Rehearing Denied Jan. 6, 1953.

Hearing Denied Feb. 19, 1953.

Guthrie, Darling & Shattuck, Los Angeles, for appellant.

Bronson, Bronson & McKinnon, Edgar H. Rowe, San Francisco, for respondent.

SHINN, Presiding Justice.

Plaintiff LeRoy D. Owen appeals from a judgment of dismissal after the demurrer of defendant National Container Corporation of California, a corporation, was sustained to the third amended complaint without leave to amend. Plaintiff, a real estate broker, sued for the sum of $15,000 on an express contract to pay for his services, and in a second cause of action for the same amount alleged to be the value of the services. National Container Corporation, a foreign corporation, parent of appellant, also was named as a defendant, but the action was dismissed as to it after an order quashing service of summons.

It appears from the briefs that the demurrer was sustained upon the ground that the action was upon a contract employing plaintiff for the purchase by the California corporation of real estate and was not in writing. Code Civ.Proc., § 1973; Civ.Code, § 1624. We are of the opinion that the demurrer should not have been sustained.

The complaint alleged in part as set out below. ¹ Attached to the complaint were copies of 37 written communications that passed between plaintiff and one or the other of defendant corporations, as well as a communication from George J. Schneider to Samuel Kipnis, who were respectively the vice president and the president of both corporations, a copy of which was sent to plaintiff. These communications were under various dates between October 15, 1946 and November 11, 1949. The complaint alleged that plaintiff had performed all the agreed services. The writings show that for a period of about three years plaintiff was endeavoring to locate for defendants a suitable site for a factory; he sent information to defendants concerning a number of improved properties which were considered by defendants and found unsuitable; in 1949 he submitted a 5.5 acre parcel belonging to the Central Manufacturing District, Inc., together with plans and specifications and estimates of cost of a factory building prepared by the owner of the property and he also arranged numerous alterations in the plans and specifications in accordance with the wishes of defendants. It also appears from the correspondence that plaintiff furnished defendant with the surveys described in the complaint. Appellant eventually purchased the 5.5 acre site and constructed thereon a building alleged on information and belief to have cost $300,000. It was alleged that in constructing the building defendants used and adapted many of the suggestions, plans and ideas developed by plaintiff and that the plaintiff's 5% commission is due because the purchase of the real estate and construction of the building were consummated. Plaintiff limited his claim to a percentage of the cost of the building and made no demand for compensation for negotiating and effecting a sale of the real property.

The contentions of the parties which require decision are the following: Plaintiff claims that the agreement pleaded was one that was not required to be in writing, and that proof of the agreement and full compliance on his part would entitle him to the agreed compensation; respondent, the California corporation, hereafter referred to as defendant, maintains that the services of plaintiff were only those of a broker endeavoring to make a sale of real property, the special services alleged being only incidental to the main purpose of assisting defendant in acquiring a suitable location, either improved or unimproved, and that a contract therefor was required to be in writing; that the writings do not constitute an employment of plaintiff for any purpose, nor an agreement to compensate him. Plaintiff replies that the writings are sufficient as a written employment of plaintiff to render the special services if a writing was required.

It is obvious that the letters were incorporated in the complaint upon the theory that they constituted a written agreement of employment and that this theory was pressed upon the trial court. As we shall presently see the correspondence which related to the question of performance, rather than to the matter of employment, tended to confuse the issue, namely, whether the agreement pleaded was within the statute of frauds. We agree with the trial court that the writings do not constitute an employment of plaintiff or an agreement to pay him for his services. They merely show the nature of plaintiff's services, and defendants' requests for further information. If the writings alone were to be considered, we would not hesitate to regard them as insufficient to entitle plaintiff to recover any compensation for his services, but they must be considered with the allegations of the complaint. The agreement pleaded may fairly be construed as one under which plaintiff was to be compensated if he performed his services as agreed and a building was constructed upon a site 'located' by him and purchased by defendant. The allegation that 'defendants confirmed this agreement in writing as shown by the written documents attached hereto' etc., is a mere conclusion and not an allegation that the writings constituted the contract.

An employment of plaintiff to negotiate and assist defendants in effecting a purchase of real property for compensation or a commission would, of course, be invalid unless in writing. Code Civ.Proc., § 1973; Civ.Code, § 1624; Shanklin v. Hall, 100 Cal. 26, 34 P. 636; Dolan v. O'Toole, 129 Cal. 488, 62 P. 92; Duckworth v. Schumacher, 135 Cal.App. 661, 27 P.2d 919. A valid oral agreement could be made for the special services alleged, consisting of the surveys made, the furnishing of plans, specifications and estimates, and the negotiations carried on for the construction of a building by Central Manufacturing District.

An employment of plaintiff merely to give defendants information as to available factory sites would not have to be in writing. Wilson v. Morton, 85 Cal. 598, 24 P. 784. An employment of plaintiff 'to locate a suitable industrial site,' without any duty on his part to bring the parties together or to negotiate or assist in a purchase would not be an employment to purchase real property. See Blanchard v. Pauley, 92 Cal.App.2d 244, 206 P.2d 864. The complaint, exclusive of the exhibits, did not allege an agreement that was required to be in writing and we do not believe the attached correspondence constituted an employment different from the one alleged. So far as factory sites were concerned the letters from plaintiff conveyed information as to various sites but none of the letters from either side disclosed any negotiations or authority to negotiate with any of the owners until the Central Manufacturing District site was proposed. With reference to this site there were extensive negotiations carried on by plaintiff, but these were concerned with the proposed construction of a...