Rankin v. Miller

• Decision Date: 22 March 1960
• Citation: Rankin v. Miller, 179 Cal.App.2d 133, 3 Cal.Rptr. 496 (Cal. App. 1960)
• Court: California Court of Appeals
• Parties: Floyd RANKIN, doing business as Rankin Realty & Investment, Plaintiff and Appellant, v. George P. MILLER, Defendant and Respondent. Civ. 23893.

Page 496

3 Cal.Rptr. 496

179 Cal.App.2d 133

Floyd RANKIN, doing business as Rankin Realty & Investment, Plaintiff and Appellant, v. George P. MILLER, Defendant and Respondent.

Civ. 23893.

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

March 22, 1960.

John Rough and Doane Brakemeyer, Lancaster, for appellant.

Vaino Spencer, Los Angeles, for respondent.

FORD, Justice.

This is an appeal by the plaintiff, a licensed real estate broker, from an adverse judgment in an action to recover the amount of $4,050 under an agreement.

The plaintiff relied upon an agreement bearing the date of July 5, 1956, which was stated to be for the period of July 5, 1956, to October 5, 1956, inclusive. It was provided therein that the defendant granted to the plaintiff 'the exclusive and irrevocable right to sell said property within said time' for $22,500. The defendant further agreed to pay the broker ten per cent 'of the selling price if said property is sold during the term hereof or any extension thereof by Broker or by me or by another broker or through any other source.' It was further stated that such percentage of the listed price would be payable to the broker if the property should be transferred during the term of the agreement or any extension thereof. In his complaint, the plaintiff alleged that the property had been sold by the defendant to Evan D. Miller and another on or about July 20, 1956, for a consideration of $40,500.

The defense was two-fold in nature. That there had been a sale was denied. In addition, in a supplemental answer the defendant alleged that on or about August 14, 1957, ¹ the property had been reconveyed to the defendant, that thereafter the parties orally agreed that the plaintiff should have a commission on any subsequent sale of the property 'in consideration for the release or discharge of any claim which the plaintiff might allegedly possess,' and that on or about November 14, 1957, that agreement was fully executed in that the plaintiff received a commission of approximately $1,166.66 upon the sale of the property.

The findings of the trial court were that there had been no sale during the time that the agreement of July 5, 1956, was in effect and that the allegations of the supplemental answer, to which reference has just been made, were true. The questions presented on this appeal relate to the sufficiency of the evidence to support such findings.

Under the terms of the agreement, the plaintiff was given an exclusive right to sell as distinguished from a sole or exclusive agency. Accordingly, compensation would be due him pursuant to its terms if the defendant made a sale while it was in effect even though the plaintiff was not the procuring cause of such sale. Walter v. Libby, 72 Cal.App.2d 138, 141, 164 P.2d 21; see E. A. Strout Western Realty Agency v. Gregoire, 101 Cal.App.2d 512, 516-517, 225 P.2d 585; Wright v. Vernon, 81 Cal.App.2d 346, 347, 183 P.2d 908; 9 Cal.Jur.2d, Brokers, § 94. Under the terms of the agreement, the same result would follow from a transfer of the property by the defendant during such period. Cf. Baumgartner v. Meek, 126 Cal.App.2d 505, 272 P.2d 552.

The pertinent evidence will be summarized. It was, in some respects, rather sketchy. Mr. Rankin, the plaintiff, testified as to the efforts he had made to sell the property. In the latter part of August, 1956, an escrow for the sale of the property was opened. It was thereafter reported to him that the defendant did not own the property and he called the matter to the defenant's attention. A certified copy of a grant deed of the property signed by the defendant and dated July 20, 1956, was received in evidence. The grantee was a person by the name of Evan D. Miller. The certificate of acknowledgement before a notary was dated July 20, 1956. The deed had been recorded on August 24, 1956. On September 25, 1956, prior to the time that the plaintiff learned of this transfer, the defendant signed an extension of the agreement to January 1, 1957. The defendant testified that the grant of the property was made about July 20, 1956, but he did not know the date exactly. He received nothing for the property although he was to receive a down payment of $10,000. Because of the buyer's failure to pay him, he listed the property with Mr. Rankin. As a part of his own case, the defendant testified that he entered into the contract with Mr. Rankin after the transfer to Evan Miller. He later paid Evan Miller $500 to reacquire the property.

The defendant testified as to the circumstances under which he gave a new listing to the plaintiff after the present action was filed. Such testimony was:

'Q. Now, Mr. Miller, after you had re-acquired this property from Evan D. Miller, did you ever talk to Mr. Rankin regarding a compromise? A. I called Mr. Rankin and told him Evan D. Miller agreed to sign off for $500. And I went back up there, thinking that Mr. Rankin would compromise with me if I relisted--after what's his name signed off. Anyway I went back up there and listed with him and told him.

'Q. Did you mention anything to him with respect to this particular lawsuit to Mr. Rankin? A. Yes.

'Q. What did you state to him about the lawsuit? A. Well, as I said, I wanted to compromise so as he would cancel that lawsuit, and I did that, and I did that on that account, figuring that--and I told him I didn't want no lawsuit, because I'd rather have his friendship than to have a lawsuit and I come back to relist that with him to avoid that * * * to avoid this, and that is what I thought he had in mind. * * * I sold the property, and he got that right out of it [the commission of $1,166.66 on the sale after the second listing]; the real estate people that had furnished the buyer and sold it, they gave him that. They went up from his office and I told him what had happened, and he said, 'Well, we will go up and talk to Mr. Rankin.' So they went up and talked to him and they said--and then they told me that he agreed to accept that much money.

'The Court: Was there any agreement between you and Mr. Rankin that this was in settlement of this lawsuit?

'The Witness: No, sir; no, sir. I take it for granted that he would take the thousand dollars, and when I went back the second time, he didn't have his sign on my property, he had his sign about several hundred feet off my property when he collected that money.

'The Court: Go ahead.

'Q. By Mr, Mabry: When you went in to give Mr. Rankin an exclusive listing to sell your property, why did you do that? A. I did that thinking that he would cancel that suit that he had got against me. I thought----

'Q. Did you ask him to do that? A. Yes, I asked him, yes.

'Q. And then he accepted this listing, is that correct? A. Yes, and I thought Mr. Rankin was kind enough to do that and call it square and we'd still be good friends. That is all.'

On cross-examination, he continued:

'Q. When you went back to the Rankin office to relist the property, you said you thought that Mr. Rankin would cancel this lawsuit. A. That is right.

'Q. Did he tell you he would? A. Well, he didn't say that he would, but----

'Q. He didn't say he would? A. No, he didn't say; I don't remember him saying he would.'

The plaintiff's testimony upon that subject was as follows:

'Q. When did you receive any money? A. After, following or subsequent sale of same property, I received one-third of the commission on the sale of this same property.

'Q. Now did you receive an exclusive right to sell this same property after it had been re-acquired by Mr. Miller? A. That is right.

'Q. And that was of course after this action had been filed? A. That is right.

'Q. When did you receive this exclusive right to sell, sir? A. I am a bit vague on dates; however, I believe the date would be later in the month of September of 1957.'

Then after testifying that the sale under the second listing was a transaction in cooperation with other brokers, the plaintiff continued:

'Q. By Mr. Mabry: In granting you this last exclusive, or this subsequent exclusive right to sell, was there any conversation between you and Mr. Miller regarding the compromising of this lawsuit in exchange for this exclusive right to sell? A. Prior to the granting of the exclusive right to me by Mr. Miller, Mr. Miller asked me if that could be done, a compromise on this thing. I advised him that I couldn't. I couldn't wash out an earned commission for the possibility of a commission, and that was the way we left it. Mr. Miller at that time had to produce monies to clear his recent escrow on the same property so that he could list the property with me for sale. This he did and when he got the vesting back in his name, he came to my office...