Summers v. Freeman

• Citation: 128 Cal.App.2d 828,276 P.2d 131
• Court: California Court of Appeals Court of Appeals
• Decision Date: 18 November 1954
• Parties: Byron W. SUMMERS, Plaintiff and Respondent, v. A. C. FREEMAN, Defendant and Appellant. Civ. 16006.

Page 131

276 P.2d 131

128 Cal.App.2d 828

Byron W. SUMMERS, Plaintiff and Respondent, v. A. C. FREEMAN, Defendant and Appellant.

Civ. 16006.

District Court of Appeal, First District, Division 2, California.

Nov. 18, 1954.

Hearing Denied Jan. 26, 1955.

Wagstaffe & Daba, Redwood City, for appellant.

Charles McLaughlin, San Francisco, Alfred J. Harwood, San Francisco, Wayne R Millington, Redwood City, of counsel, for respondent.

DOOLING, Justice.

This is an appeal from a judgment for $6,250 following a jury verdict in favor of plaintiff, whose recovery was based upon a written agreement of employment between him as a real estate broker and the defendant.

On January 22, 1951 defendant-appellant Freeman approached plaintiff-respondent Summers. The appellant owned a piece of commercial property in South San Francisco and was interested in exchanging it for commercial property in San Francisco.

Respondent contacted owners of property in San Francisco including Maurice Stulsaft who owned the Land Development Company. Stulsaft gave respondent twelve statements of buildings he owned and the respondent gave appellant copies of three of them.

Respondent looked over the three buildings first and went to the San Francisco Real Estate Board to make an onion-skin map of the block in which the three buildings were located. From this map respondent made two copies on cardboard, one of which he gave to appellant.

Armed with the maps and the breakdowns on the buildings, which included cost, type of construction, number of square feet, etc., respondent met appellant in front of one of the buildings being considered and the one ultimately obtained by appellant (hereinafter called 249 Pine Street).

They went through the three buildings from top to bottom, at the end of which appellant told respondent to go see Stulsaft in order to get the price and come to some kind of terms.

Respondent suggested to Stulsaft that appellant make an offer of $150,000 cash and the South San Francisco property for 249 Pine Street. Stulsaft replied that if respondent could get appellant to sign an exchange agreement Stulsaft would make a counter offer.

After the interview with Stulsaft respondent told appellant that Stulsaft would agree to exchange 249 Pine Street for the South San Franciso property but wanted appellant to make the first offer. In answer to this appellant stated that he wished to see other buildings so that he could make a comparison.

Between January 30 and July 24, appellant and respondent had many conversations about the exchange of the South San Francisco property for 249 Pine Street, and although respondent showed him about fourteen other buildings he still felt 249 Pine Street was the best deal.

After a while appellant told respondent to concentrate on the exchange of his property for the Broadway Market in Redwood City which was also owned by Stulsaft.

On July 24, 1951 the contract upon which this action is based was signed by appellant. The contract reads: '7-24-51. I, the undersigned, agree to sell this property outlined in red, 8.8 acres, more or less, through agency of Byron W. Summers. (Signed) A. C. Freeman.' It was written by respondent on the back of one of the maps of appellant's property. Respondent testified that appellant signed an agreement testified at the same meeting giving him authority to exchange appellant's property for the Broadway Market, but he also wanted to protect himself in case any of the other deals on which he had been working went through.

Subsequent to this meeting the two parties had three separate meetings on August 13, 16 and 27, at which times they discussed the different possibilities of exchange and on each occasion respondent emphasized that 249 Pine Street was the best deal.

With appellant's consent respondent also advertised the South San Francisco property at his own expense in the Wall Street Journal during the month of August.

In latc July or early August appellant again went through 249 Pine Street very thoroughly, this time accompanied by another real estate agent named Phillips with whom he had done business in early 1951 and a man named Shorenstein who represented Stulsaft. As a consequence the exchange agreement was written and signed near the end of August by all parties, and Phillips received a $5,000 commission from appellant.

Appellant makes three contentions: (1) The agreement sued upon was an exclusive agreement and therefore void because it did not contain a definite termination date; (2) it was error for the court to instruct the jury to disregard any testimony that a copy of the alleged agreement sued upon was either delivered or not delivered to appellant; (3) the facts were insufficient as a matter of law, to prove that respondent was the procuring cause of the exchange of appellant's land.

The first contention is based on Business and Professions Code section 10176(f). The pertinent part of the section reads:

'The commissioner may, upon his own motion, and shall upon the verified complaint in writing of any person, investigate the actions of any person engaged in the business or acting in the capacity of a real estate licensee within this State, and he may temporarily suspend or permanently revoke a real estate license at any time where the licensee within the immediately preceding three years, while a real estate licensee, in performing or attempting to perform any of the acts within the scope of this chapter has been guilty of any of the following: * * *

'(f) The practice of claiming, demanding, or receiving a fee, compensation or commission under any exclusive agreement authorizing or employing a licensee to sell, buy or exchange real estate for compensation or commission where such agreement does not contain a definite, specified date of final and complete termination.' St.1949, c. 826, p. 1571, § 5.

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