Opinion
Rehearing Granted June 18, 1931
Appeal from Superior Court, City and County of San Francisco; W.A. Anderson, Judge.
Action by Henry H. Traxler against Madeline McLeran, as administratrix with the will annexed of the estate of Ralph McLeran, deceased. From a judgment in favor of plaintiff, defendant appeals.
Modified, and as modified, affirmed. COUNSEL
Humphrey, Searls, Doyle & MacMillan, William F. Humphrey, A.T. O’Connell, and Edward I. Fitzpatrick, all of San Francisco, for appellant.
Theodore M. Monell, of San Francisco, for respondent.
OPINION
STURTEVANT, J.
The plaintiff sued to recover broker’s commissions alleged to be due and owing to him from the defendant’s testator. The defendant asserts that there is no testimony to support the finding that the plaintiff performed the contract under which he claims relief. She also asserts that there was no agreement employing the plaintiff. And she further asserts that the purported agreement was one of exchange and that there was found to be a material defect in the title to Ehrlick’s property which was not removed and therefore no commission was earned. These several contentions we think may best be treated together.
On January 16, 1928, defendant’s testator executed an instrument agreeing to exchange three several parcels of land together with $15,000 in cash for a parcel on the west line of Mission street which was entirely covered by buildings. The writing included, among others these passages:
"Henry H. Traxler is hereby constituted my agent to negotiate this exchange and two days are allowed him to secure written acceptance hereof.
"Fifteen days from the date of acceptance shall be allowed for search of titles and consummation, unless one or both titles are found to be defective. In the latter event the party or parties whose title is defective shall be allowed 60 days additional, after receipt by Henry H. Traxler of written notice of objections to title, within which to remedy defects.
"At the conclusion of the 60 days, or before, if both titles are sooner made acceptable, this exchange shall be finally consummated in the office of Henry H. Traxler by each party delivering to the other all payments and instruments in writing required to comply with the terms specified and particularly to vest in each by grant, bargain and sale deed good merchantable title to all of the real property that is to go from one to the other under this agreement. *** It is further agreed with the said agent that when he has secured an acceptance in writing of the above proposition that I will then pay to said agent at his office in San Francisco, the sum of one thousand and no/100 ($1,000.00) on demand for services rendered; and it is understood that said agent may also act as agent for the owner of the above secondly described property from whom he may also receive a commission. Time is of the essence hereof. (Signed.) Ralph McLeran. The foregoing is hereby accepted and performance by me is agreed to this 17th day of January, 1928, and I agree to pay Henry H. Traxler at his office in San Francisco. California, the sum of thirty-six hundred twenty-five ($3,625.00) dollars as agreed for services rendered; and it is understood that Henry H. Traxler may also act as agent for the owner of the firstly herein described property from whom he may also receive a commission.
"Commission to be paid upon consummation as follows: $1,725.00 in cash. Lot on 34th Ave. and 2 lots in Richmond City property. (Signed) Gustav Ehrlick."
The paper was not signed by this plaintiff. After it had been signed by Ehrlick a survey was made, and it transpired that the improvements on Ehrlick’s property overlapped the sidewalk on the east line of the property and that they overlapped to the extent of three-quarters of an inch the property adjoining on the north side. The overlapping was never cut off nor the overlapping property purchased, but further proceedings between the exchanging parties were, by stipulation, indefinitely postponed. Mr. McLeran died on August 21, 1928. The plaintiff presented a claim against the estate of the decedent. That claim was as follows: "To services rendered in securing acceptance of exchange proposition as per agreement, $1,000.00. To commission earned for services performed as real estate agent as per agreement $3,625.00. Total $4,625.00." The judgment as rendered was for the full sum covered in the claim together with interest.
The contention that the evidence does not support the findings is based on the fact that no one was called as a witness to identify the signature of Ehrlick. Nevertheless one copy of the contract, purporting to be signed by Ehrlick and his signature acknowledged before a notary public, was admitted in evidence. That evidence was sufficient to support the finding.
The contention that there was no agreement of employment of Traxler rests on the fact that he did not sign the written instrument. That fact is not determinative. McLeran and Ehrlick both signed and under the clear terms of the writing they were the ones "to be charged." The statute (Civ.Code, § 1624) was complied with. Harper v. Goldschmidt, 156 Cal. 245, 104 P. 451, 28 L.R.A.(N.S.) 689, 134 Am.St.Rep. 124. This plaintiff was entitled to sue thereon before it was rescinded. Lundeen v. Nowlin, 20 Cal.App. 415, 129 P. 474; Stanton v. Carnahan, 15 Cal.App. 527, 115 P. 339. In so far as the defendant was concerned her testator became liable under the terms of the contract when the plaintiff had "*** secured an acceptance in writing of the above proposition. ***" Darrow v. Houlihan, 205 Cal. 771, 774, 272 P. 1049. But under the clear terms of the contract Mr. McLeran’s liability was in the sum of $1,000 and no more.
The defendant next asserts that there was a defect in the title to the property of Gustav Ehrlick— there was an overlapping. True, but it was slight and the wall of the adjacent property is in place. The courts will treat the slight overlapping as de minimus. 39 Cyc. 1506; Macdonald v. Bach, 51 A.D. 549, 64 N.Y.S. 831, 833.
The defendant asserts that there is a variance between the claim presented and the suit filed thereon. We think not. Nevertheless both the claim and the suit asked for more relief against this defendant than the plaintiff was entitled to. Under the clear terms of the contract the plaintiff under certain conditions was entitled to claim $1,000 against Mr. McLeran and no more. Under certain other conditions he was entitled to claim money and real estate in the sum of $3,625 against Mr. Ehrlick and no more. We note that it is the claim of the plaintiff that Mr. McLeran failed to carry out the contract and therefore Mr. Ehrlick did not carry out his contract with the plaintiff, and therefore this defendant is responsible for Mr. Ehrlick’s omission in that behalf. But that is not so. If Mr. Ehrlick desired a specific performance, that course was open to him but he did not pursue it. When the plaintiff had obtained a customer ready, able, and willing to make the exchange, and both parties had signed an enforcible contract to that effect, the transaction was complete. Purcell v. Firth, 175 Cal. 746, 750, 167 P. 379. Although that case involved a sale and the case at bar involves an exchange, the rule is the same. 9 C.J. 623; Levy v. Dusenbery, 32 Cal.App. 411, 417, 163 P. 231; Turner v. Watkins, 36 Cal.App. 503, 506, 172 P. 620. Upon the signing of the contract, the liability of Mr. Ehrlick to the plaintiff became fixed and no part of it was removed and cast on Mr. McLeran by his subsequent neglect or refusal to proceed. Bird v. Rowell, 180 Mo.App. 421, 167 S.W. 1172, 1174. The case cited is clearly parallel in all of its facts. Bird acted as agent of both of the exchanging parties. Rowell subsequently refused to carry out the contract of exchange. Bird sued him for the commission which Bird had failed to receive from Wolfe, the other party to the exchange. On the page cited the court said: "Under the facts of this case, before plaintiff can recover of defendant the commission Wolfe agreed to pay, he must show that Wolfe cannot be held liable therefor and that defendant’s act caused such nonliability. Let us see whether Wolfe is exempt from such liability. To keep the matter clear, let us consider this question as if there was but one commission due plaintiff, and that from Wolfe for procuring a purchaser of Wolfe’s farm. In such case, whenever plaintiff obtained a purchaser financially able to buy, which purchaser Wolfe accepts, and the purchaser enters into a valid written agreement with Wolfe to purchase on the terms named, then plaintiff has earned his commission, even though the purchaser afterwards refuses to carry out the contract. [Citing cases.] So far as the pleadings are concerned, they show that this was done. They show that a written contract between Wolfe and defendant, signed by both of them and valid on its face, was executed and delivered, and that defendant was financially able to carry it out but refused, without legal excuse, to do so. Consequently Wolfe is shown by the pleadings to be liable to plaintiff for the $500 he agreed to pay him. Hence defendant has not caused plaintiff to lose $500, and the motion for judgment on the pleadings should have been sustained."
Claiming that the judgment should not have gone against her in any sum, the defendant cites and relies on Jennings v. Jordan, 31 Cal.App. 335, 160 P. 576. It is not helpful. The contract in that case is fully set forth in the opinion. It is quite different from the contract hereinabove set forth. In the case cited the contract was rescinded. The contract sued on in this case has never been rescinded, but by written stipulation has been indefinitely continued in force and effect.
The judgment is modified. The sum of $5,083.65 is stricken out and the sum of $1,098.30 is inserted in lieu thereof. As so modified the judgment is affirmed, and appellant will have judgment for her costs on this appeal.
We concur: NOURSE, P.J.; SPENCE, J.