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District Court of Appeal, Second District, Division 3, California.

Wayland T. LEONARD dba Wayland T. Leonard Co., Plaintiff and Respondent, v. Roy E. FALLAS, Defendant and Appellant.*

Civ. 22925.

Decided: September 11, 1958

Bailie, Turner, Lake & Sprague, Los Angeles, for appellant. Allan L. Leonard, Los Angeles, for respondent.

By his complaint in this action, plaintiff, hereinafter called Leonard, sought judgment against the defendant for breach of a contract to pay a commission upon the sale of real estate. Defendant appeals from the judgment of the trial court awarding plaintiff $8,000 as damages for breach of the alleged contract.

By his complaint the plaintiff alleges that on February 29, 1956, plaintiff and defendant entered into a contract in writing whereby the defendant granted to the plaintiff (a licensed real estate broker) the exclusive right to sell certain property owned by the defendant, for a period expiring on March 22, 1956, at a price of $243,000. By the terms of the contract, defendant agreed to pay a certain agreed percentage of the selling price ‘if said property is sold on the above terms or any other terms acceptable to me while this contract is in force, or if sold within 90 days after its termination to anyone whose name is registered with me in writing as of the termination date.’ (Italics ours.) That on March 7, 1956, the plaintiff, in writing, registered with the defendant the name of Morgan Adams as a person to whom he had submitted the property. That on June 7, 1956, the defendant sold the subject property to said Adams for the sum of $220,000 and that plaintiff's ‘earned commission’ was in the sum of $8,000. That plaintiff had done and performed every act and thing to be performed by him under the terms of the contract. That defendant had failed and refused to pay to the plaintiff the said sum of $8,000 or any part thereof.

By his answer the defendant admitted the execution of the contract; admitted that the plaintiff had in writing designated Adams as a person to whom the property had been submitted; admitted the sale of the property to Adams; denied that the plaintiff's ‘earned commission’ was in the sum of $8,000 and denied that the plaintiff had performed the terms of the contract upon his part to be performed.

By one of the affirmative defenses pleaded, the defendant alleged that said Adams was not a prospective purchaser of the property in question at the time of the termination of plaintiff's exclusive right to sell and that the sale to Adams was negotiated by and through a real estate broker other than the plaintiff and that plaintiff ‘did no act, nor performed any services which in any way brought about, induced, influenced or caused’ the offer of Adams to purchase said property or the sale of said property to Adams.

The court found the existence of the contract; found further that plaintiff had made contact with one Morgan Adams ‘in respect of the possible purchase by the said Adams of the said real property; that plaintiff under date of March 7th, 1956, and on March 22nd, 1956 by reference to the said letter of March 7th, 1956, registered with defendant in writing the name of Morgan Adams (among others) as a prospective purchaser.’ The court further found that defendant had sold the property to Adams on June 7, 1956 (within the 90 day period after the expiration of plaintiff's exclusive right) through the agency of real estate brokers other than the plaintiff for the sum of $220,000. The court expressly refused to find upon any other issues tendered by the pleadings.

As a conclusion of law from the facts, the court concluded that the plaintiff had been damaged in the sum of $8,000 and the plaintiff was entitled to judgment in that amount together with interest at seven per cent per annum from June 7, 1956.1

We have reached the conclusion that the findings are insufficient to support the judgment and that the court erred in failing to find upon the issues tendered upon the allegations of the complaint which were denied by the answer that plaintiff had performed all of the terms and conditions of the contract on his part to be performed, and the issues tendered by the affirmative defense which we have noted above.

Plaintiff bases his right to recover upon that portion of the contract which we have heretofore italicized and which required the payment of commission to him if the property should be sold to any person whose name he had registered with the defendant in writing prior to the termination date of the contract and if said sale be made within 90 days after the termination date. This language in the contract implies an obligation on the part of the broker to do something more than merely contact the prospect and list his name with the owner. In order that he may be entitled to a commission under the terms of the contract he must allege and show, and by his evidence prove that his efforts were a procuring or efficient cause of the subsequent sale. Wright & Kimbrough v. Dewees, 52 Cal.App. 42, 197 P. 957; Hobson v. Hunt, 59 Cal.App. 679, 211 P. 242; Mills v. Hunter, 103 Cal.App.2d 352, at pages 358, 360, 229 P.2d 456, at pages 459, 461.

The facts found by the court fall far short of providing a basis for the judgment. Although the issue was directly tendered by the answer as well as by the denied allegations of the complaint, there is no finding that any act of the plaintiff was a ‘procuring or efficient cause’ of the sale eventually made by the defendant.

The judgment is reversed.


1.  The court further concluded that the defendant had breached his contract with the plaintiff and had thereby prevented plaintiff from performing his contract. This conclusion could not be supported by the findings and was beyond the issues tendered by the complaint and is purely surplusage.

NOURSE, Justice pro tem.

SHINN, P. J., and VALLEÉ, J., concur.

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