Opinion
Docket No. S.F. 11498.
October 31, 1927.
APPEAL from a judgment of the Superior Court of Alameda County. Joseph S. Koford, Judge. Affirmed.
The facts are stated in the opinion of the court.
B.D. Marx Greene for Appellants.
Clark, Nichols Eltse for Respondent.
The plaintiffs herein, who, as copartners doing business under the firm name and style of Guy Hyde Chick Company, are real estate brokers, commenced this action to recover the sum of two thousand dollars from the defendant, alleged to be due as commission for the plaintiffs' services in the matter of the sale of certain real estate in the city of Berkeley. The basis of the plaintiffs' claim consisted in a written authorization executed by the defendant on October 2, 1923, addressed to the plaintiffs and reading in part as follows: "Please sell for me my property situate at No. ____ Tunnel Road on the north side of Tunnel Road, known as Cheadle Hall in the Claremont Tract, Berkeley, together with the appurtenances, for the sum of Forty-two Thousand dollars ($42,000). Should you succeed in selling it, or should I sell it to anyone to whom you show the property, I will pay you five per cent of the price obtained." The plaintiffs in their complaint allege that the defendant is indebted to them in the sum of two thousand dollars for services rendered as real estate brokers inferentially by reason of the authorization contained in said writing. The defendant in his answer denies said indebtedness or that the same arose out of any services whatever performed for the defendant at his request or otherwise. Upon the submission of the cause the trial court made its findings of fact and conclusions of law, and in so doing found that "no services were performed by the plaintiffs for the defendant; that defendant did not agree to pay plaintiffs two thousand dollars or any other sum for services performed or to be performed; that nothing is due, owing or unpaid from the defendant to the plaintiffs"; and as a conclusion of law based thereon the court found "that the plaintiffs are not, nor is either of them, entitled to judgment or to the relief prayed for, or any relief; that the defendant is entitled to his costs." From the judgment accordingly entered the plaintiffs prosecute this appeal.
The facts elicited at the trial upon which the foregoing finding of fact and conclusion of law is based may be briefly stated as follows: Shortly after the above authorization of the plaintiffs to procure a purchaser for the defendant's property the plaintiffs succeeded in negotiating a sale thereof to two persons named Brown, husband and wife, who, on October 3, 1923, paid a deposit of two thousand dollars on account of the purchase price of said property, and thereupon entered into an agreement in writing with the owner for the completion of the purchase thereof upon the terms set forth therein. Subsequently to the execution of said agreement and while the same was apparently in full force and effect, the plaintiffs, without any authorization from the defendant, caused the property in question to be surveyed and subdivided into a number of lots, and, having done so, erected upon the property a large sign showing that it was to be sold in subdivisions by or through the plaintiffs, the name of the owner, however, nowhere appearing upon said sign. They also caused blue-prints to be made of the subdivision, which they sent forth to numerous other real estate agents with letters indicating the rates or prices which would be made upon the subdivided portions of the premises. Thereafter and about the 1st of November one H.T. Ghirardelli saw the aforesaid sign upon the property and that the same was to be subdivided, and thereupon telephoned to one of the plaintiffs and arranged to go, and did go, to see the property within a day or two thereafter, and thereupon made to the plaintiffs an offer of a trade or exchange the other properties therefor, which offer was not within the scope of the plaintiffs' authorization, and so far as the record shows was never submitted to the owner. During this negotiation the plaintiffs did not reveal the name of the owner of the property to Ghirardelli, nor did the latter know who its owner was; and there is some evidence in the record which tends to show that in thus negotiating with Ghirardelli the plaintiffs were dealing with the property as though it was the property of the Browns or was soon to become so under the latter's agreement of purchase. The plaintiffs had no further dealings with Ghirardelli. The time limit under the Brown contract to purchase the property expired on December 3, 1923. The Browns defaulted and both the plaintiffs and the defendant treated their default as amounting to a forfeiture of the two thousand dollar deposit which they had made, and thereafter and during the month of December the defendant paid over to the plaintiffs one-half of said deposit under the provisions of their said agreement, which contained a clause for such division of the deposit in the event of forfeiture. During the month of December, 1923, Ghirardelli came into relation with another real estate firm, namely, Mason-McDuffie Company, which firm was also the holder of an authorization from the defendant to sell his said property, and thereafter and on December 31st a sale of the said property was consummated to said Ghirardelli and through the agency of said last-named firm of brokers. Thereafter the plaintiffs, having learned of such sale, demanded of the defendant the payment to them of a commission in the amount of two thousand dollars, upon the theory apparently that they had shown the property to Ghirardelli while acting as the agents of the defendant and were thus, under the terms of the contract, entitled to said commission. [1] The trial court, however, reached the conclusion as the result of its consideration of the foregoing evidentiary facts that whatever the said plaintiffs had done in the way of showing the defendant's property to Ghirardelli had been done after they had apparently accomplished a sale of said property to the Browns, and having done so were engaged in an endeavor to achieve a subdivision and resale thereof in the interest of the Browns and not the defendant. It seems entirely clear to us that the inferences which the trial court drew in that regard were fully justified by the evidence before it, and that this being so its findings and conclusions must be held to have been sustained by such evidence.
It follows that the judgment herein must be affirmed, and it is so ordered.
Shenk, J., Waste, C.J., Curtis, J., Langdon, J., Seawell, J., and Preston, J., concurred.