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


Civ. 17197.

Decided: February 15, 1950

Charles C. Montgomery, Jr., Burbank, for appellants. Harold A. Fendler, Beverly Hills, Robert W. Lerner, Beverly Hills, of counsel, for respondent.

Plaintiffs appeal from a judgment dismissing an action to recover a broker's commission paid to defendant after defendant's demurrer was sustained to the first amended complaint. There are also purported appeals from (1) an order sustaining the demurrer to the original complaint, and (2) an order sustaining a demurrer to the first amended complaint.

i. Appeal from the Judgment of Dismissal of the Action.

The complaint as amended was in four counts, the material allegations of which were as follows:

First Count

Pursuant to an oral contract plaintiffs employed defendant as an agent and broker for the purpose of representing them in the purchase of certain real property. The vendors of the real property paid plaintiffs $2,000 in connection with the purchase and sale of the property, which sum was paid through an escrow to which plaintiffs, as vendees, and the vendors of the property were parties.

Second Count

This cause of action was a common count for money had and received predicated upon the facts set forth in the first cause of action.

Third Count

This count alleged that plaintiffs had paid defendant the sum of $400 for services rendered and in addition he had received $2,000 from the vendors of the real property from the escrow ‘pursuant to instructions given to said bank by said’ vendors.

Fourth Count

The fourth cause of action sought exemplary damages predicated upon the facts alleged in the first cause of action.

A general demurrer as to the first, second and third counts was sustained and plaintiffs given 20 days to amend. As to the fourth cause of action, it was sustained without leave to amend. Plaintiffs having declined to file an amended pleading, a judgment of dismissal was ordered.


Did the complaint in any count state a cause of action?

This question must be answered in the negative.

Count I: It was alleged that defendant had been employed by plaintiffs ‘pursuant to an oral contract’ to purchase certain real property. Such contract was invalid under section 1624, subdivison 5, of the Civil Code which provides that an agreement authorizing or employing an agent or broker to purchase real estate for compensation or a commission is invalid unless the same or some note or memorandum thereof is in writing and is subscribed by the party to be charged or by his agent. Failure to comply with the provisions of this section renders the contract unenforcible at the option of the person against whom it is sought to be enforced. (Dessert Seed Co. v. Garbus, 66 Cal.App.2d 838, 845, 153 P.2d 184. Hence it is obvious that this count of the pleading failed to state a cause of action against defendant.

Court II: The second count was a common count for money had and received predicated upon the specific facts set forth in the first count. Therefore it was proper to sustain the demurrer to the second count since, if plaintiffs are not entitled to recover under a count in a complaint wherein all the facts upon which their demand is based are specifically pleaded, it is proper to sustain a demurrer to a common count set forth in the complaint, the recovery under which is obviously based on the set of facts specifically pleaded in the other count. (Hays v. Temple, 23 Cal.App.2d 690, 695, 73 P.2d 1248; Rose v. Ames, 53 Cal.App.2d 583, 589, 128 P.2d 65.

Count III: In the third count it was alleged that the commission paid by the vendors to defendant was from an escrow to which both plaintiffs (vendees) and the vendors were parties. Therefore, since the escrow holder had notice that the vendor was paying a commission to defendant, such notice was imputable to plaintiffs, the vendees, who were parties to the escrow. (See Early v. Owens, 109 Cal.App. 489, 494, 293 P. 136; Ryder v. Young, 9 Cal.App.2d 545, 553, 50 P.2d 495; Smith v. Brown, 1 Cal.App.2d 492, 495, 36 P.2d 1081.

Since plaintiffs had knowledge of the payments by the vendors to defendant, it is obvious that the latter could not have made a secret profit in the transaction, and a demurrer was properly sustained as to this count.

Count IV: By this count plaintiffs sought to recover exemplary damages and it was therefore a tort action. Under section 3294 of the Civil Code exemplary damages may not be recovered for a breach of obligation arising ex contractu. In the present case plaintiffs sought and obtained a writ of attachment which may issue properly only in an action ex contractu. (Hallidie v. Enginger, 175 Cal. 505, 508, 166 P. 1. Therefore plaintiffs by seeking and obtaining a writ of attachment elected to rely on an action ex contractu, and waived their right to a remedy predicated on an action ex delicto. (DeLaval Pac. Co. v. United Cleaners & Dyers Co., 65 Cal.App. 584, 586, 224 P. 766. Cf. Smith v. Miller, 5 Cal.App.2d 564, 569, 43 P.2d 347; Steiner v. Thomas, 94 655, 211 P.2d 321). Likewise the law is established that exemplary damages may be recovered only upon allegation and proof of actual damages. (Clark v. McClurg, 215 Cal. 279, 282, 9 P.2d 505, 81 AL.R. 908; Mother Cobb's Chicken Turnovers, Inc., v. Fox, 10 Cal.2d 203, 205, 73 P.2d 1185). The pleading in the instant case failed to allege any actual damage. Hence the demurrer was properly sustained to this count of the pleading.

ii Purported Appeal from the Order Sustaining the Demurrer to the Original Complaint.

Where, as in the present case, a general demurrer is sustained to a complaint and plaintiff elects to file an amended pleading, he abandons his original complaint and is not in a position to urge on appeal that the original complaint stated a cause of action and that the trial court erred in sustaining a general demurrer thereto. (Sheehy v. Roman Catholic Archbishop, 49 Cal.App.2d 537, 540, 122 P.2d 60; Alhambra Transfer, etc., Co. v. Muse, 41 Cal.App.2d 92, 93, 106 63. Therefore plaintiffs' argument as to the original complaint will not be considered by us.

iii Purported Appeal from the Order Sustaining a Demurrer to the First Amended Complaint.

An order sustaining a demurrer is not appealable. (Temple v. Horrall, 92 Cal.App.2d 177, 206 P.2d 909.) Hence the purported appeal from this order must be dismissed.

The judgment of dismissal is affirmed, and the purported appeals from the orders sustaining the demurrers are and each is dismissed.

McCOMB, Justice.

MOORE, P. K., and WILSON, J., concur.

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