Sanstrum v. Gonser
| Decision Date | 13 April 1956 |
| Citation | 140 Cal.App.2d 732,295 P.2d 532 |
| Parties | G. M. SANSTRUM, Plaintiff and Respondent, v. Ina GONSER, Defendant and Appellant. Civ. 5314. |
| Court | California Court of Appeals Court of Appeals |
Lester N. Gonser, Fresno, for appellant.
Lee G. Brown, Hanford, for respondent.
This is an appeal by the defendant, Ina Gonser, from a judgment in favor of the plaintiff, G. M. Sanstrum, for a real estate broker's commission in the sum of $1,025. The principal questions to be decided are whether there was a sufficient memorandum in writing to satisfy the requirements of the Statute of Frauds and if so, whether there was performance within the terms of such contract. In the court below, defendant consistently maintained her position that she is not liable, through her pleadings, a motion for judgment on the pleadings and timely objections to the evidence.
Plaintiff, a duly licensed real estate broker, bases his claim that there was a sufficient memorandum to justify a recovery of 5% of the selling price of defendant's ranch near Laton in Fresno County, on three writings. His complaint as amended first alleges that defendant orally engaged him on or about the 20th of March, 1954, as an agent to sell her land and 'that plaintiff thereupon undertook the negotiation of the sale of said land belonging to defendant upon the terms and conditions agreed upon and suggested by defendant'. As a contract 'authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission' is void 'unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by his agent', Section 1624(5) Civ.Code; Zeimer v. Antisell, 75 Cal. 509, 511, 17 P. 642; Myres v. Surryhne, 67 Cal. 657, 8 P. 523; Jamison v. Hyde, 141 Cal. 109, 112, 74 P. 695; Augustine v. Trucco, 124 Cal.App.2d 229, 237, 268 P.2d 780; Hooper v. Mayfield, 114 Cal.App.2d 802, 806, 251 P.2d 330; Sweeley v. Gordon, 47 Cal.App.2d 381, 383, 118 P.2d 14; Ford v. Palisades Corp., 101 Cal.App.2d 491, 498, 225 P.2d 545, the plaintiff then refers to three writings which he claims to be sufficient to meet the specifications of the statute.
The first (Exhibit A attached to the complaint) is a letter reading as follows:
'March 30, 1954
'Visalia, California
'Dear Mr. Sanstrum:
'Since we have set a price on the Laton place there is a realtor in Hanford who would also like to handle the selling of the property. Before placing it in his hands I should like to know just how interested your client is in buying, his financial background, and a little about him personally in order to know just what to do.
'Thank you.
'Yours truly,
'Ina Gonser
'1502 Shady Lane
'Visalia, California
'Phone 4-4881.'
This first letter does not meet the requirements of a sufficient memorandum. The 'setting of a price' on land does not imply the employment of a broker, Patterson v. Torrey, 18 Cal.App. 346, 123 P. 224, and mere interest on the part of a 'client' of a real estate agent does not give him any ground for claiming remuneration from the landowner for a possible sale of the property. Hooper v. Mayfield, 114 Cal.App.2d 802, 808, 251 P.2d 330; Edens v. Stoddard, 126 Cal.App.2d 56, 60, 271 P.2d 610. In fact the letter, particularly when considered in connection with plaintiff's reply (Exhibit B attached to the complaint) in which he says: 'If you will let me know your terms, I have other clients whom I could work on for a sale for you', seems to indicate that no details of a sale had been announced by defendant and that no general oral contract had been entered into between the parties under which defendant had authorized him to secure a purchaser for a compensation to be paid to him.
The second letter (Complaint, Exhibit C) is equally ineffective:
'Visalia, California,
'April 19, 1954
'Dear Mr. Sanstrum:
'Thank you.
'Yours truly,
'Ina Gonser.'
As is said in Blanchard v. Pauley, 92 Cal.App.2d 244, 247, 206 P.2d 864, 865:
'The rule is settled that in a suit by a broker to recover a real estate commission in order to show compliance with the statute the writing signed by the party to be charged or his agent must unequivocally show on its face the fact of employment of the broker; that is, it must show an authority to act or negotiate a sale of the property for the owner.' See also: Edens v. Stoddard, supra, 126 Cal.App.2d 56, 59, 271 P.2d 610; Herzog v. Blatt, 80 Cal.App.2d 340, 342, 180 P.2d 30; Kleinsorge & Heilbron v. Liness, 17 Cal.App. 534, 536, 120 P. 444; Patterson v. Torrey, 18 Cal.App. 346, 123 P. 224.
Clarity requires a short summary of the evidence relative to the preceding negotiations for the sale of the property before we consider the third writing relied upon by respondent. Mr. Sanstrum had written to one Casey Patrick, a grocery store proprietor, at Quincy, California, with whom he had previously become acquainted in connection with the sale of 40 acres in the vicinity, advising him that he could buy the Gonser place for $25,000. Several letters passed between them, including one in which Mr. Patrick said he would be willing to pay $21,000 for the property; this fact was communicated to Mrs. Gonser and she stated the figure was acceptable. However, the details of the transaction had not been agreed to, and Mrs. Gonser, who was moving to San Luis Obispo, went to the Security Title Insurance Company office in Hanford, and with the assistance of the plaintiff, directed the preparation of complete escrow instructions which were then signed by her. This is the third writing which plaintiff relies upon as a memorandum (Complaint, Exhibit D).
The escrow instructions, on a single sheet of paper, are in the usual two parts, one to be signed by the Patricks but never executed by them, and one actually signed by the defendant. As dictated by her, the proposed agreement by the Patricks was that they should pay $6,000 into escrow and deposit a note and trust deed for $15,000 to complete the purchase of the land, the note to bear interest at the rate of 6% per annum rather than the 4% which Patrick previously had expressed a willingness to pay, with annual installments of $1,000 or more payable on the 11th day of each May, commencing in 1955, and terminating in 1964 but containing the further provision: 'Payees agree with payor to pay $5,000.00 on principal of this note, in addition to any and all other payments called for, immediately after completion of the sale of their property at Quincy, California.' The sale was specified as being subject to an existing unrecorded farm lease with buyers to receive all rentals, and called for a proration of the 1953-54 taxes and of the rental of the house on the premises; the cost of recording the deed and trust deed and one-half the escrow fee were to be borne by the buyers.
The part of the escrow instructions signed by the defendant approved the buyer's portion of the proposed escrow, and gave directions to the escrow holder with respect to the disbursement of funds as follows:
'1. Reimburse yourself for advances chargeable to me and deduct your charges as hereinafter specified.
'2. Pay G. M. Sanstrum a commission in the amount of $5% of the sale price. Broker's License No. _____ Mail check to him at _____.
'3. Pay demand of none
'Provided buyers acceptance of this escrow in writing is not in escrow agents hands by May 17, 1954, then this escrow shall be cancelled.
'Whose address is ________
'4. Pay balance to seller and mail check to (address) shown below.
'I agree to pay policy of title insurance, revenue stamps and 1/2 of escrow fee.
'Attach Internal Revenue Stamps to deed in the amount of $23.10 'Ina Gonser 190 Toro, San Luis Obispo, Calif.
'Sellers Address Phone Number' The Patricks upon being contacted at Quincy, advanced adamant objections to several of the proposed terms of the sale, including the interest rate demanded by Mrs. Gonser on deferred payments of principal, and the escrow instructions were never signed by them. The deadline of May 17, 1954 passed with no contract of sale entered into. On May 29th Mrs. Gonser told the plaintiff that the deal was off and a deposit which Mr. Patrick had made with plaintiff was returned to him; Mr. Sanstrum did nothing further in the matter.
Returning to a consideration of Mrs. Gonser's signed portion of the escrow writing, we conclude that within their selfimposed limits these instructions, considered in the light of Mr. Sanstrum's testimony concerning precedent oral negotiations, constituted a memorandum which would have been sufficient to satisfy the requirements of Section 1624(5) of the Civil Code if the Patricks had executed their part of the escrow instructions, and the sale had been effected. Coulter v. Howard, 203 Cal. 17, 22, 262 P. 751; Devereux v. Sirkus, 105 Cal.App.2d 340, 344, 233 P.2d 644; Allen v. Gindling, 136 Cal.App.2d 21, 288 P.2d 130; Fritz v. Frost, 114 Cal.App. 602, 607, 300 P. 454; Corvin v. Smead Inv. Co., 115 Cal.App. 175, 178, 1 P.2d 507; Hillman v. Koch, 92 Cal.App.2d 163, 206 P.2d 434.
But this is not equivalent to saying, as the trial judge did, that the direction in the uncompleted escrow instructions to pay a commission to the broker if and when the proposed sale should be consummated on the express terms specified may be taken out of its context and treated as a memorandum of a general and continuing brokerage contract. The distinction between the two situations is made clear in Irwin v. Klimper, 56 Cal.App. 434, 435, 205 P. 714, in which it is held that a direction in escrow instructions to pay a commission to a broker upon the close of the escrow does not constitute a general agreement employing the broker to sell the...
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