Preston v. Carnation Co.
| Decision Date | 03 October 1961 |
| Citation | 196 Cal.App.2d 43,16 Cal.Rptr. 240 |
| Parties | Jack PRESTON, Plaintiff and Appellant, v. CARNATION COMPANY, a Corporation, Defendant and Respondent. Civ. 25458. |
| Court | California Court of Appeals Court of Appeals |
Thomas W. Hughes, Los Angeles, for appellant.
William H. Birnie, James R. Baird, Jr., William H. Birnie, Los Angeles, for respondent.
This is an appeal from a judgment in favor of the defendant upon a claim of plaintiff for a real estate broker's commission.
Plaintiff, a real estate broker, brought an action against the defendant to collect a broker's commission of five percent of and upon the sales price of a certain parcel of real property sold by the defendant to the City of Burbank. The plaintiff claims to have been the procuring cause of the sale of the property to the purchaser.
A resume of some of the facts in the case is as follows: In 1956 the plaintiff, upon an oral contract of employment, sold some property of the defendant's and was paid a broker's commission for such service. Thereafter, the defendant told the plaintiff that it wished to sell off certain of its property in the City of Burbank for the sum of $400,000.
The plaintiff, a resident of the City of Burbank, told defendant of his knowledge to the effect that the City of Burbank had indicated an intention of building a new municipal power plant and work yard and that the city might be interested in the purchase of the land in question. The defendant, on May 18, 1956, gave to plaintiff a letter of authority to present the property to the city for a sale. The plaintiff thereafter directed a letter to the city outlining the proposed terms of purchase of the property in question as of that time. Various surveys were had and made by the city and the property in question was included within some of the surveys. To finance the power plant and work yard the city intended to issue and sell bonds which needed the approval of the voters.
The defendant gave to the plaintiff an exclusive listing (to expire November 30, 1956) of certain property which in total area was smaller than the parcel which was originally to be sold. No sale of the property so described was made.
On November 6, 1956 a bond election was held in the City of Burbank and the voters rejected the proposal to issue and sell the bonds for the purposes heretofore mentioned.
On December 6, 1956 the defendant directed a letter to plaintiff giving him a new exclusive listing of certain parcels of the property. This listing was effective to December 31, 1956. The area of the parcels and the price thereof was different than that of the property theretofore listed with the plaintiff. Plaintiff was told in the letter '[T]his exclusive will run through December 31, 1956 and if not sold by that time, we will place the property on an open listing basis but we would be glad to protect you or anyone else who has an active prospect.' Plaintiff claims that he re-opened negotiations with the city. No sale was completed in 1956. Plaintiff requested a new exclusive listing of defendant's property and was refused.
On January 30, 1957 the city enacted an ordinance calling for a bond election to be held on February 26, 1957. The bond issue was approved by the voters at the election. On April 16, 1957 the city council noticed a meeting to consider the matter of the location and construction of the plant which was contemplated in the bond issue election. The attorney for the defendant was present at the council meeting. Plaintiff was told in effect by the attorney for the defendant that he, the plaintiff, would have nothing to do with the matter so far as defendant was concerned.
On August 1, 1957 a condemnation action was filed by the City of Burbank and a copy of the summons and complaint were served upon the defendant. The city in said action sought to condemn a part of defendant's property. On September 25, 1957 the condemnation case was settled when the defendant and the city entered into a 'Sales Agreement.' The description of the real property and the terms and conditions of the purchase and sale thereof mentioned in the 'Sales Agreement' were different from those contained in the proposal made in the letters to the plaintiff in 1956.
The city manager of the City of Burbank testified with reference to a conversation he had with the plaintiff on or about February 19, 1957 and said,
The general manager of the public service department of the City of Burbank testified in effect that the city was not an active prospect as a purchaser of the property up to about March of 1957. He testified further with reference to the various ramifications involved in the surveys and in the bond elections and of the various views of the interested parties as to where the plant was to be located.
Appellant now asserts that he is entitled under the circumstances to a real estate broker's commission of five percent of the sales price of the property to the city. Civil Code Section 1624 provides in part as follows:
'The following contracts are invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by his agent: * * *
'4. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged;
Plaintiff in the first instance did have a written instrument subscribed by the party to be charged which spelled out in effect his rights. After December 31, 1956 however the plaintiff had no such effective writing.
9 Cal.Jur.2d Brokers, Section 44, page 190 states, 'If a definite time for the continuance of a broker's agency is fixed in the employment agreement, his authority terminates upon the lapse of that time.' The plaintiff should have known, under the...
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Sonday v. Dave Kohel Agency, Inc., 2004AP2322.
...the broker to a commission, at least not without a specific provision to that effect in the contract. See, e.g., Preston v. Carnation Co., 16 Cal.Rptr. 240, 244 (Ct. App.1961); Wilson v. Frederick R. Ross Inv. Co., 116 Colo. 249, 180 P.2d 226, 230 (1947); Shaw v. Avenue D Stores, Inc., 115 ......
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St. Joe Corp. v. McIver
...can never constitute a sale for purposes of a brokerage commission. See Dauer, 413 So.2d at 63-64; Preston v. Carnation Co., 196 Cal.App.2d 43, 16 Cal.Rptr. 240 (1961); Haigler v. Ingle, 119 Colo. 145, 200 P.2d 913 (1948); Shaw v. Ave. D Stores, Inc., 115 N.Y.S.2d 194 (1952). The rule is no......
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Johnson v. Servaes
...arguing that he is entitled to recover under the theory of quantum meruit. That this theory is untenable is apparent from Preston v. Carnation Co., 196 Cal.App.2d 43, wherein the court said, at page 46, 16 Cal.Rptr. 240, at page 'The plaintiff should have known, under the circumstances, the......
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City of Turlock v. Paul M. Zagaris, Inc.
...appellant's expectations should have been correspondingly reduced. Further, as noted by the court in Preston v. Carnation Co. (1961) 196 Cal.App.2d 43, 16 Cal.Rptr. 240, as a matter of practice a real estate broker can protect himself by covering the possibility of condemnation proceedings ......
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Real estate broker, escrow agent and notary liability
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