Spielberg v. Granz

• Decision Date: 14 October 1960
• Citation: 185 Cal.App.2d 283,8 Cal.Rptr. 190
• Court: California Court of Appeals Court of Appeals
• Parties: Max SPIELBERG, Plaintiff and Appellant, v. Edward M. GRANZ, Bernard Granz, Defendants and Respondents. Civ. 24260.

Page 190

8 Cal.Rptr. 190

185 Cal.App.2d 283

Max SPIELBERG, Plaintiff and Appellant, v. Edward M. GRANZ, Bernard Granz, Defendants and Respondents.

Civ. 24260.

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

Oct. 14, 1960.

Rehearing Denied Nov. 4, 1960

Hearing Denied Dec. 7, 1960.

Stanley N. Gleis and Robert A. Neeb, Jr., Beverly Hills, for appellant.

Horowitz & Howard, Los Angeles, for respondents.

FORD, Justice.

The question presented on this appeal is whether the evidence and the applicable law support the determination of the trial court that the plaintiff acted as a real estate broker in the transaction out of which the present action arose and, not having been licensed as such broker, he could not prevail as against the defendant Edward M. Granz.

In the first cause of action of his first amended complaint, the appellant alleged that by an agreement in writing the respondent Edward M. Granz gave him the right and option to purchase from that respondent, on or before September 1, 1955, certain real property for $7,500. He further alleged that the consideration for such agreement was the rendition of services by him for the respondent Edward M. Granz, at the request of the latter, 'which included transportation from Los Angeles to said property, assisting said Defendant in the inspection of said property, and reviewing and approving escrow instructions and legal description of said property.' It was further alleged that on August 11, 1955, the sum of $7,500 was tendered to the respondent Edward M. Granz but such tender was refused. That cause of action included other allegations appropriate to an action for specific performance.

In the second cause of action, the appellant alleged that in the month of August, 1954, he and the respondent Edward M. Granz entered into an oral agreement 'to go into business together and said business was a single joint venture for the purchase of a particular piece of real estate located at Lancaster.' It was also alleged that the appellant introduced the respondent to the owner of the property 'and the terms and conditions for the purchase were worked out, and as a part of the agreement of business between plaintiff and said defendant it was agreed that the plaintiff would buy an undivided one-fourth interest in the entire parcel and that the defendant would own 75% of the said parcel.' The appellant further alleged that it was agreed that the appellant would have until September 1, 1955, within which to pay his share of the original purchase price of $30,000, and that on or about December 17, 1954, the terms of the agreement were embodied in a written document which included 'express provisions for participation in profits and being liable for loss in the proportion of their ownership.' The tender of $7,500 and the refusal thereof were also asserted.

The third cause of action related to a conveyance by the respondent Edward M. Granz to his brother of one-half of the property at a time when the brother knew of the agreement between the appellant and Edward M. Granz.

In addition to denials in his answer which put in issue allegations of the first amended complaint, the respondent Edward M. Granz pleaded, as affirmative defenses, that there was a lack of consideration for the written document and that, in addition to the services which were claimed to have been rendered as alleged in the first cause of action, other services were rendered, including the negotiation of price and terms with the vendor, which constituted the services of a real estate broker or salesman, for the performance of which services the appellant was not licensed.

The trial court made findings of fact which were in part as follows: 1. On or about December 17, 1954, respondent Edward M. Granz signed and handed to appellant the written document which was set forth in the first amended complaint but there was no consideration therefor. 2. In March, 1955, respondent Edward M. Granz notified the appellant orally and in writing that he withdrew and rescinded the offer contained therein. 3. On August 11, 1955, the appellant did tender and offer to respondent Edward M. Granz the sum of $7,500 for an undivided one-fourth interest in the property but Granz refused to accept the money tendered and to convey an interest in the property. 4. The appellant and the respondent Edward M. Granz never entered into an agreement, oral or written, 'to go into business together as a single joint venture for the purchase of any particular piece of real estate located in Lancaster.' 5. It was not agreed, as a part of any written or oral agreement to go into business together, that the appellant would buy an undivided 25 per cent in the described parcel of real estate and that the respondent Edward M. Granz would own 75 per cent therein. 6. The appellant was not, at any time mentioned in his first amended complaint, a licensed real estate broker or salesman and that the services rendered by him to the respondent Edward M. Granz prior to December 17, 1955, 'were the services which could be rendered only by a licensed real estate broker or salesman, which services included the negotiation of both the acreage to be purchased by the defendant Edward M. Granz and the purchase price thereof.' Pursuant to the conclusion of law that the appellant was not entitled to any relief, judgment was entered, from which judgment the present appeal has been taken.

Inasmuch as the testimony of the respondent Edward M. Granz was to the effect that the appellant was not instrumental at all in the purchase of the particular property by that respondent, we must look to the appellant's own testimony so as to determine whether the findings of fact as to the nature of his activities find support therein. The appellant, a bail bondsman, had known Edward M. Granz since the early part of 1954. On August 14 or 15 of that year, the appellant talked to Granz on the telephone and told him that he had just received a call from a broker in Lancaster whose associate had 100 acres which he was going to put on the market because he needed $30,000 in cash. The appellant further said to Granz, 'Eddie, you have been going up to Lancaster with me for three or four or five months * * *. You have always wanted to buy property with me and I told you that if anything really good comes up, a real good buy, that I would call you and we would buy the property together.' He further testified that Granz said to him, 'What do you want out of this?' The appellant replied as follows: 'Eddie, I want to buy this property with you. I haven't the money at the present time, but you know I have money coming in on trust deeds all along on the property that I sold, and I want to buy a twenty-five percent interest in this property with you, and I want an option for one year to give you the $7,500.00, and you know that you will get the $7,500.00.' In response, Granz said that that was more than fair and suggested that they look at the property. On the following Saturday, the appellant and Granz went to Lancaster in the appellant's automobile and viewed the property. When asked by Granz as to what would happen if the property decreased in value, the appellant stated that: '* * * if it did, I would take my proportionate share of the twenty-five percent interest that I will have as soon as I give you the $7,500.00.' After viewing the property, they went to the office of the broker who owned the property. The owner, Irving Harris, returned with them to the property. Mr. Harris said that he was going to put 80 acres on the market and not 100 acres as the appellant had mentioned. He showed the appellant and Granz the 80 acres, which did not include the 20 acres along the railroad tracks. The appellant said that the owner's associate had told him that 'it would be a hundred acre parcel and we would have tracks' and that they were only interested in the property if the 20 acres were included. Mr. Harris suggested that they return to his office to see if 'we can work it out.' The appellant further said that he understood the price would be $300 an acre but Mr. Harris said that he was going to put it on the market at $350 an acre. The appellant replied that the owner's associate had told him that the price would be $30,000, not $35,000. Mr. Harris said that if that was so, the price would be $30,000. When they returned to the office, the owner examined some maps and said, 'I think my engineer will work out a deal where you can get the hundred acres and have the 20 acres along the tracks to be contiguous with the other acreage.' The appellant replied, 'That's fine.' He further said that the respondent Edward M. Granz had the $30,000 and would open an escrow. But Granz stated that he did not have the $30,000 then but could get it within a period of 30 days and wanted an option to purchase the property within that period. The appellant stated that he did not want to tell Mr. Harris or his associate that 'we are going to buy the property and then you ask for an option for 30 days.' Mr. Harris said he would give the appellant an option for 30 days, but the appellant stated: 'Well, I won't take the option because I couldn't come up with the money in 30 days. All I am doing is buying a twenty-five percent interest of Eddie Granz' interest, hundred percent interest in the property. I could not come up with the $30,000.00.' Mr. Harris agreed to give the option to Granz if he was the appellant's friend. Whereupon the appellant said, 'Well, you're crazy to do it, but if you want to, that's your property.' Granz stated that he and the appellant were buying the property together and that he wanted to include the condition that the appellant approve the legal description of the property, the escrow instructions and the preliminary report. Later an escrow was opened and the appellant approved the escrow instructions and the preliminary report 'possibly the first part of...