Opinion
Rehearing Denied April 12, 1930
Hearing Granted by Supreme Court May 12, 1930
Appeal from Superior Court, City and County of San Francisco; Frank J. Murasky, Judge.
Action by Harry F. Davis against W.F. Chipman, as trustee of the estate of Josephine A. Phelps, deceased. Judgment for plaintiff, and defendant appeals.
Reversed.
For opinion of District Court of Appeal, see 282 P. 992. COUNSEL
W.C. Sharpsteen, Cushing & Cushing, and William H. Gorrill, all of San Francisco, for appellant.
Fred L. Berry and Dozier & Kimball, all of San Francisco, for respondent.
OPINION
PER CURIAM.
The judgment in the present action and the one in the companion action hereto, entitled Dozier, Jr., v. Chipman, as Trustee, etc., 286 P. 433, were by this court ordered reversed, and thereafter rehearings were granted so as to afford this court an opportunity to consider certain applications filed by the respective parties a few days prior to the date on which said judgments of reversal would have become final. The purpose of appellant’s applications was to modify said judgments of reversal by adding a clause thereto directing the trial court to change its conclusions of law so as to conform to the views expressed in the opinions filed by this court and to enter judgments for the defendant in accordance with such conclusions of law; and to that end, if it was deemed necessary, that this court make findings of fact contrary to and in place of those heretofore made by the trial court. Respondents’ applications were filed under the authority of rule XXXVIII of the Supreme Court and the District Courts of Appeal and of section 956a of the Code of Civil Procedure, to obtain permission to take additional testimony before this court relating to matters of fact occurring prior to the entry of the judgments in the trial court, which testimony respondents asserted would support said judgments.
After hearing the oral arguments in support of said applications and giving further consideration to the merits of said appeals, we are of the opinion that said applications should be denied, and it is so ordered. And being satisfied with the reasoning and conclusions set forth in the opinions heretofore written by Mr. Justice pro tem. Gray, and filed herein, we adopt the same as the opinions of this court. The one relating to the appeal in the present case reads as follows:
Challenging the sufficiency of the evidence to support certain findings, defendant appeals from a judgment awarding plaintiff one half of the unpaid balance of an agreed compensation (the other half having been assigned to Thomas B. Dozier, Jr., plaintiff in the companion case) for services, which the complaint, in the form of a common count, alleges, and the answer denies, were rendered to defendant, and for which the answer affirmatively alleges plaintiff cannot recover because he was not a licensed real estate broker.
The unquestioned findings picture the transaction between the parties, out of which the present dispute arose, as follows: Simultaneously, defendant executed and delivered to Thomas B. Dozier, Jr., his written option to purchase certain property therein described, within three months, for $250,000, and to plaintiff, his written agreement containing the following pertinent terms: "Thomas B. Dozier, Jr., has requested me to send you this copy of the above Option to Purchase, as he states that such Option to Purchase was secured through your efforts, and that you interested him in the property from a purchase standpoint. I hereby agree, if Thomas B. Dozier, Jr., *** exercise the above option to purchase *** to pay you a commission on the sale of the property of ten per cent. (10%) of the purchase price of the same, such commission to be due and payable ratably and proportionately, if, as and when such purchase price is received by me. *** It is further understood and agreed that, on or before the expiration of said Option to Purchase, both Mr. Dozier and yourself are to furnish me with the complete names and addresses of all parties with whom you are or have been dealing for the sale of said property under said Option to Purchase and that no commission will be due and payable to you except it is effected within one (1) year of said expiration of said Option to Purchase and with one of the parties whose name and address has been previously furnished by one or both of you, and it is further understood that any party to whom a sale of the property is effected through your efforts must be a party with whom there have been no negotiations heretofore in connection with said property." Within the time limited, plaintiff and Dozier, jointly, furnished to plaintiff the names and addresses of persons, including the subsequent purchaser. Plaintiff also, after the expiration of the option, personally introduced to defendant this purchaser and the last two "directly and together conferred respecting the purchase of said property, the conditions and terms of sale of said property and negotiated solely and alone therefor *** without the interposition or acts of plaintiff. ***" While these negotiations were pending, plaintiff and Dozier wrote defendant "that we are willing to accept a commission of ten per cent. (10%) of each payment on the purchase price *** such commission to be payable to us out of and from each payment on the purchase price, if, as and when received by yourself, without interest." Defendant has received the total purchase price of $250,000 in unequal installments over a period of eighteen months. Plaintiff was a licensed real estate broker only during the time when installments totaling $191,506.50 were received. Defendant paid commissions on the first three installments in accordance with the letter without interest, although plaintiff did not then have a license.
The court further found that plaintiff rendered services to defendant, at his request, for an agreed compensation of $25,000, which is due, owing, and unpaid; that plaintiff and Dozier furnished to defendant, in writing, the name and address of the purchaser, as required by the agreement; that plaintiff did not negotiate the terms of the sale or do other than introduce the purchaser to defendant, as a result of which the sale was effected; that a cause of action for the services accrued as each installment was paid; and that such services were rendered, not as a real estate broker, but consisted merely of finding and introducing a purchaser who was ready, able, and willing to purchase. By his claim that the evidence is insufficient to support these findings, defendant squarely presents for decision the question: What services were to be rendered under the agreement? He argues that the agreement employed plaintiff, as a real estate broker, to produce a purchaser, and that, as plaintiff’s services were not the procuring cause of the sale, and as he did not have a license as a real estate broker at the time of sale, he cannot recover. In reply, plaintiff takes two somewhat inconsistent positions: (1) That the services to be rendered under the agreement consisted merely of furnishing names and addresses according to its terms and were not such as are performed by a real estate broker; and (2) if such services required a license, he can recover on those installments which were paid when he had such license.
The nature and extent of the services for which plaintiff was to be compensated are to be determined solely by an examination of the above-mentioned agreement because a comparison of its terms with those in the letter of Dozier and the plaintiff, acceded to by defendant, when he mailed the first check for commission, clearly shows a modification solely as to interest. In construing that agreement all three sentences must be considered and attention cannot be confined solely to the last sentence, as if it were detached and unconnected with the first two sentences. Cole v. Low, 81 Cal.App. 633, 254 P. 676. The first sentence states that Dozier’s option was secured through plaintiff’s efforts and that plaintiff interested Dozier in the purchase of the property. The italicized words aptly and appropriately described services to be performed by a real estate broker. Sessions v. Pacific Improvement Co., 57 Cal.App. 1, 206 P. 653; Ross v. Major, 178 Mo.App. 431, 163 S.W. 880. It is apparent that such services were rendered prior to the agreement. However, such past services were a sufficient consideration to support the promise to pay, if Dozier exercised his option, as contained in the second sentence. Cole v. Low, supra. In the last sentence, defendant promised to pay the commission, if a sale was effected with a party whose name and address had been furnished as one with whom plaintiff had been dealing for the sale of the property under the option and with whom there had been no previous negotiations. The effect of this sentence was not to create a new and independent obligation, separate and distinct from the obligation created by the second sentence, but was intended "to protect plaintiff for his efforts during the life of the contract resulting in a sale not consummated until after the termination of the contract." Wright & Kimbrough v. Dewees, 52 Cal.App. 42, 46, 197 P. 957, 958, Hobson v. Hunt, 59 Cal.App. 679, 211 P. 242. The word "efforts," in the clause "it is further understood that any party to whom a sale of the property is effected through your efforts must be a party with whom there have been no negotiations heretofore," means the same as the word "negotiations." Sessions v. Pacific Improvement Co., supra. The services contemplated by the agreement, therefore, were the negotiation of the sale of the property to recover compensation for which plaintiff was required to have a license. St.1919, pp. 1252, 1259, § § 2 and 20; Kornman v. Nelson, 83 Cal.App. 616, 257 P. 150. The case of Shaffer v. Beinhorn, 190 Cal. 569, 213 P. 960, cited by plaintiff, is not in point, because the court was there not discussing a question of fact, but merely passing upon the sufficiency of a complaint, which contained an allegation expressly negativing the statutory definition of a real estate broker. Since the agreement provided "such commission to be due and payable ratably and proportionately if, as and when such purchase price is received by me" (the defendant), plaintiff was only entitled to a commission on each installment as collected. Arnold v. La Belle Oil Co., 47 Cal.App. 290, 109 P. 815; Miller v. Lerdo Land Co., 52 Cal.App. 662, 199 P. 1073. A real estate broker, although he possessed no license at time of employment and rendition of services, can recover his commission if he possesses such license when his commission is earned and payable. Houston v. Williams, 53 Cal.App. 267, 200 P. 55; Wise v. Radis, 74 Cal.App. 765, 242 P. 90. Were it not for the matters to be next discussed, plaintiff would therefore be entitled to a commission on the installments paid while he had such license.
" ‘The duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made, and until this is done his right to commissions does not accrue.’ Sibbald v. [Bethlehem] Iron Co., 83 N.Y. 382 [38 Am.Rep. 441]. *** If he failed to do that, he is not entitled to the commission, even though he made efforts to sell the property, and first called to it the attention of the party who subsequently made the purchase. *** Zeimer v. Antisell, 75 Cal. 509, 512, 17 P. 642, 643. "It is not enough that he contribute indirectly or incidentally to the sale by imparting information which tends to arouse interest, but it is sufficient if it be established that he set in motion a chain of events which without break in their continuity caused the buyer and seller to come to terms, that his efforts constituted the proximate cause of the meeting of the minds of the principals. *** Sessions v. Pacific Improvement Co., 57 Cal.App. 1, 206 P. 653; Sargent v. Ullsperger, 54 Cal.App. 384, 201 P. 934. It is necessary for the broker to prove therefore that he was the efficient or procuring cause of the sale; in other words, it must appear that his efforts had to do with the meeting of the minds of the seller and buyer. Webster v. Parra, 72 Cal.App. 639, 237 P. 804. *** ‘The expression "procuring and inducing cause," as used in the books, refers to the cause originating from a series of events that without break in their continuity results in the prime object of the employment of the agent.’ Roth v. Thomson, 40 Cal.App. 208, 180 P. 656, quoting approvingly the rule stated in Smith v. Preiss, 117 Minn. 392, 136 N.W. 7, Ann.Cas.1913D, 820. In any event the question of whether or not the sale is primarily the result of the broker’s efforts is one of fact, and the trial court’s conclusions thereon will not be disturbed on appeal if there be substantial evidence to sustain them. Sessions v. Pacific Improvement Co., supra." Bail v. Glantz, 78 Cal.App. 49, 53, 248 P. 258, 259.
The following facts appear, without conflict, in the transcript of evidence: The purchaser had previously attempted to buy the property from a prior optionee. Dozier and plaintiff, within the life of Dozier’s option, attempted to interest the purchaser in a syndicate, which they were then trying to form to acquire the property under the option. The purchaser informed them that he was not interested in joining the syndicate but was interested in acquiring the property for his own account. Learning this attitude, they attempted to disinterest the purchaser in obtaining the property for himself. During the option’s term, Dozier and plaintiff furnished the name and address of such purchaser, as that of a party with whom they had been dealing for the sale of the property. Obviously the attempt to interest this purchaser in the syndicate and disinterest him in purchasing the property for himself was not dealing with him for the sale of the property, and hence defendant’s objection that the evidence does not support the court’s finding that such name and address had been furnished as required by defendant’s agreement is well taken. After the expiration of the option, plaintiff introduced the purchaser, at the latter’s request, to defendant, and, as the court found in accord with the evidence, the purchaser and defendant, without aid or assistance of plaintiff, negotiated the terms of the sale. Measured by the rule stated in the above-cited cases, these facts clearly show that plaintiff’s efforts were not the procuring cause of the sale, especially in view of his efforts to disinterest the purchaser. Necessarily included within the court’s finding that plaintiff rendered services to defendant at his request is an implied finding that plaintiff’s efforts were the procuring cause of the sale, which finding is unsupported by the evidence. Furthermore, this finding is based in part on the agreement which contemplated the services of a real estate broker. As plaintiff’s efforts were not the procuring cause, such services were not rendered, and this finding is unsupported in the evidence.
Judgment reversed.