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District Court of Appeal, First District, Division 1, California.


Civ. 12890.

Decided: February 04, 1946

J. H. Sapiro, of San Francisco, for appellant. J. H. Brill, of San Francisco, for respondents.

A rehearing was granted in this case in order to give further consideration to a jurisdictional point first raised by plaintiff on the petition for rehearing—namely, that the motion for a new trial was premature, and for that reason all subsequent proceedings based thereon were void. The point becomes of crucial importance because, after first ordering judgment for plaintiff, the trial court in passing on the motion for a new trial, pursuant to the provisions of § 662 of the Code of Civil Procedure, ordered judgment for defendants. It is this last judgment, from which the present appeal is taken, that plaintiff urges is void because the motion for a new trial upon which it is based was prematurely filed. If plaintiff is correct, then the original judgment for plaintiff must stand, and, since defendants have not appealed from that judgment, the judgment for plaintiff, which, as a matter of law we believe and have heretofore held to be erroneous, would become final. The point need not be labored that such a miscarriage of justice should not be permitted if there is any sound legal ground upon which it can be avoided.

The following dates disclosed by the record are important to the discussion of the present point:

May 25, 1944—judgment ordered for plaintiff.

June 13, 1944—hearing on findings; findings settled and ordered redrafted in accordance with rulings then made.

June 15, 1944—notice of intention to move for a new trial served and filed.

June 16, 1944—findings actually signed and filed and judgment entered.

June 19, 1944—written notice of entry of judgment served and filed.

June 23, 1944—motion for a new trial argued and submitted.

Thereafter, the trial court, within the time permitted by law, granted judgment for defendants, and plaintiff appeals.

The contentions of plaintiff are, that since the notice of motion for a new trial was served and filed the day before the findings were signed and filed, it was filed prematurely, and that all proceedings based on such motion are void. This point was never raised before the trial court, and was not raised in this court until the petition for rehearing.

The problem centers around the proper interpretation of § 659 of the Code of Civil Procedure. It provides: ‘The party intending to move for a new trial must, either before the entry of judgment or within ten (10) days after receiving written notice of the entry of the judgment, file with the clerk and serve upon the adverse party a notice of his intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court or both. Said notice shall be deemed to be a motion for a new trial on all the grounds stated in the notice. The time above specified shall not be extended by order or stipulation.’

The first question is, What is the earliest date a motion for a new trial may be filed? Obviously, since the 1923 amendment to the section, it may be filed before the entry of judgment. The cases subsequent to the adoption of that amendment have held that it may not be filed properly prior to the signing and filing of the findings. Root v. Daugherty, 201 Cal. 12, 255 P. 181; Frye v. Pacific Freight Lines, 27 Cal.App.2d 748, 81 P.2d 1027; In re Estate of Barker, 207 Cal. 112, 276 P. 992; Reeve v. Jahn, 9 Cal.2d 244, 70 P.2d 610; Middleton v. Finney, 214 Cal. 523, 6 P.2d 938, 78 A.L.R. 1104; In re Estate of Green, 25 Cal.2d 535, 154 P.2d 692.

The second question is, What is the legal effect of a premature filing? In Root v. Daugherty, supra, 201 Cal. at page 14, 255 P. at page 181, it is held that ‘proceedings for a new trial taken prematurely are a nullity and ineffectual for any purpose. * * * We are of the opinion, therefore, that proceedings on motion for a new trial instituted by the filing of a notice of intention prior to the signing and filing of the findings of fact and conclusions of law are premature and ineffectual for any purpose.’ The other cases cited, supra, reaffirm that rule. In the Frye case, supra, after reaffirming that rule the court states (27 Cal.App.2d at page 750, 81 P.2d at page 1028): ‘It is argued by respondents that although the notice was premature, appellants waived the defect by a failure to object. The argument is without merit.’ The rule of this case has been criticised, 27 Cal.L.Rev. 225.

The two most recent cases where these harsh rules have been applied are City of Los Angeles v. Cole, Cal.App., 162 P.2d 306, and Tabor v. Superior Court, Cal.App., 162 P.2d 869. Hearings have been granted in both cases.

Whatever our views may be as to the correctness of the rules under discussion, as an intermediate appellate court, we are bound thereby. For this reason we start the discussion of this phase of the case with the holding that the filing of the notice of intention to move for a new trial on June 15, 1944, was premature, and for that reason void and ineffectual for any purpose.

This holding, however, is not decisive of the problem here involved. In the present case there is one fact present not present in any of the other cases so far as the opinions therein disclose. That fact is that within ten days after receiving written notice of the entry of judgment (June 19, 1944), the motion for a new trial was heard and argued (June 23, 1944). It is well settled that where a premature notice has been filed, the party involved may later file a seasonable notice. The Yamato v. Bank of Southern California, 170 Cal. 351, 149 P. 826; Middleton v. Finney, 214 Cal. 523, 6 P.2d 938, 78 A.L.R. 1104. In the present case no such subsequent notice was filed, but within the ten-day period set forth in the section the moving party orally presented and argued his motion, and the plaintiff defended the judgment and opposed the motion. Plaintiff at that time made no objection based on the premature filing of the notice of motion, nor did he object to the oral presentation of the motion. Had objection then been made defendants could then have filed a proper motion. There would seem to be no doubt but that the parties by stipulation can waive the necessity of the filing of the notice of motion and agree to argue such a motion made orally. That appears to have been the exact situation involved in Re Estate of Green, 25 Cal.2d 535, 154 P.2d 692. If the parties can stipulate to waive the necessity of the filing of the notice of intention to move for a new trial, they can also agree to hear the motion where such agreement appears by conduct as well as where it appears by words. In the present case when the motion came up for argument on June 23, 1944, the defendants' counsel could have objected to the notice of motion filed June 15th and could have refused to participate in the discussion of the motion. But this he did not do. Without objection he discussed and argued the motion. Did he, by his conduct, not mislead defendants' counsel to his injury? Had he then objected, defendants' counsel could then have filed a new and timely notice of intention to move for a new trial. By participating in the argument and discussion did he not waive the necessity of the filing of a second notice? If the parties can waive the filing of the notice of intention by express oral agreement, as was done in Re Estate of Green, supra, they can also waive the necessity of such a filing by their conduct. Under the circumstances here present plaintiff must be held to have waived the necessity of the filing of the written notice of intention, and is now estopped to raise the point that a second notice of intention was not filed. Any other rule would make a mockery of justice. The rule involved while ‘jurisdictional,’ is also ‘procedural.’ We should not permit the procedural tail to wag the appellate dog. For these reasons we are satisfied that under the facts of this case the court had jurisdiction to pass upon the motion for a new trial.

On the merits we are satisfied that this case was properly disposed of by the opinion heretofore filed. We therefore adopt that opinion as the present opinion of this court on the issues presented. It reads as follows:

‘Plaintiff appeals from a judgment denying him specific performance of an agreement to purchase real estate, from an order purporting to correct clerical errors, and from an order refusing to set aside and strike from the files an order directing judgment to be entered for defendants. The following table of dates discloses the problems involved on the appeals from the two orders:

May 25, 1944—conclusion of trial; judgment ordered for plaintiff.

June 15, 1944—notice of motion for new trial served, and filed.

June 16, 1944—findings and conclusions signed and judgment entered decreeing specific performance of contract.

June 23, 1944—motion for new trial argued and submitted.

August 15, 1944—61 days after service of notice of motion for new trial an order was filed setting aside the findings and judgment and ordering judgment for defendants.

September 15, 1944—judgment for defendants filed.

October 24, 1944—court denied plaintiff's motion to strike order of August 15, 1944, and made an order purporting to correct the minutes to show that the order actually entered August 15th was entered August 14th, on the ground that August 14th was the date the order was actually made.

‘Plaintiff contends that the trial court had no power thus to correct the minutes under the facts disclosed by the record. This argument is based on the following premises:

‘1. The 60 day time limit within which a trial court may lawfully pass on a motion for a new trial starts to run from the date of filing and serving notice of intention to move for a new trial and not from the date of notice of entry of judgment if the first-mentioned date is earlier. This premise is entirely sound. Rubens v. Whittemore, 2 Cal.App.2d 575, 38 P.2d 153; Iske v. Stockwell-Kling Corp., 128 Cal.App. 192, 17 P.2d 203. Under this rule the time within which the trial court lawfully could pass upon the motion for a new trial expired on August 14, 1944.

‘2. A determination under § 662 of the Code of Civil Procedure, which section permits a trial court in passing on a motion for a new trial to vacate and set aside the findings and judgment and enter judgment for the other side (Clarke v. Fiedler, 44 Cal.App.2d 838, 113 P.2d 275; Spier v. Lang, 4 Cal.2d 711, 53 P.2d 138; Wyman v. Monolith Portland C. Co., 3 Cal.App.2d 540, 39 P.2d 510), must be made within the 60 day time limit prescribed for the hearing and determination of motions for a new trial. This premise is likewise sound. Gustafson v. Blunk, 4 Cal.App.2d 630, 41 P.2d 953; Knight v. Paulton, 125 Cal.App. 688, 14 P.2d 94; see discussion 8 Cal.Jur.Supp. p. 545, § 130b.

‘3. The order by which the court directed that the original findings and judgment be set aside and judgment entered in favor of defendant was signed and filed August 15, 1944. This was too late, being the 61st day from the serving and filing of notice of intention to move for a new trial. Thereafter, when plaintiff moved to set aside this order on the ground that it had been filed too late, the court, on October 24, 1944, entered its order correcting the clerical error to make it read made and filed August 14, 1944, and expunging the August 15th date from the files. This order recites that on August 14th the court had determined to enter judgment in favor of defendant and so informed the clerk and directed the clerk to enter such an order, but the clerk, through mistake and inadvertence, did not enter such order until the 15th, but that the motion was actually determined on the 14th. The court thereupon denied the motion to set aside the original order. The appellant urges that under the facts the court had no power to make the challenged orders of October 24, 1944. This basic premise is unsound.

‘It is well settled that courts of record, on their own motion or upon motion of either party, ex parte or on notice, have inherent power to correct, nunc pro tunc or otherwise, clerical errors in their records in order that such records shall speak the truth. Judicial errors may not, of course, be so corrected. However, it is for the trial judge in the first instance to determine whether the error is clerical or judicial, and his determination, in the absence of a clear showing to the contrary, is final. In making such determination many times the facts are completely within the knowledge of the trial judge. He has a right to rely on his memory, and in such cases his recollection is conclusive. Carpenter v. Pacific Mut. Life Ins. Co., 14 Cal.2d 704, 96 P.2d 796; Livesay v. Deibert, 3 Cal.App.2d 140, 39 P.2d 466; King v. Emerson, 110 Cal.App. 414, 288 P. 1099, 294 P. 768; Keller v. Cleaver, 20 Cal.App.2d 364, 67 P.2d 131; Bastajian v. Brown, 19 Cal.2d 209, 120 P.2d 9; Serpa v. Davidson, 51 Cal.App.2d 619, 125 P.2d 603. It is now also well settled that if the trial judge makes up his mind as to the disposition of a pending matter and so informs the clerk, the failure of the clerk to enter the order on that date is a clerical and not judicial error and may be corrected. Keller v. Cleaver, 20 Cal.App.2d 364, 67 P.2d 131; see, also, Livesay v. Deibert, 3 Cal.App.2d 140, 39 P.2d 466. These rules apply to the facts here presented. Disregarding conflicts in the record created by the testimony of the clerk, and disregarding conflicts in the judge's own testimony, as we must (Bastajian v. Brown, 19 Cal.2d 209, 120 P.2d 9), the evidence supports the findings contained in the October 24th order. The trial judge stated that he knew that August 14th was the last day he could act; that late in the afternoon of that day he called in the clerk and discussed the matter; that he first told the clerk he had decided to grant the motion for a new trial, and then told the clerk he had decided to order judgment entered in favor of defendants. He was positive in his recollection that on the 14th he told his clerk that he had decided to set aside his original findings and judgment and order judgment for defendants; that there was no doubt that he had made up his mind and signified his intention to his clerk on the 14th.

‘Plaintiff contends that reading the judge's statements as to his recollection as a whole and giving due consideration to the clerk's testimony, all that appears is that on the 14th the trial judge had determined to grant the motion for a new trial and was then in doubt as to whether he could enter judgment for defendants, which doubt he did not resolve until the 15th. It is urged that while the court perhaps could have corrected its order in October to grant the motion for a new trial it had no power to then order judgment for defendants. It is the law, as already pointed out, that when a motion for a new trial is made the court may either grant that motion or, under § 662 of the Code of Civil Procedure, order judgment for the other side. It is also the law that the court cannot grant the motion for a new trial and then order judgment entered for the other side. The proper procedure is to deny the motion for a new trial, and, at the same time and as part of such ruling, to grant the alternative relief provided by the section. Sparr v. Byers, 139 Cal.App. 668, 34 P.2d 787; Spier v. Lang, 4 Cal.2d 711, 53 P.2d 138; Bureau of Welfare, etc., v. Drapeau, 21 Cal.App.2d 138, 68 P.2d 998; Gruben v. Leebrick & Fisher, 32 Cal.App.2d Supp. 762, 84 P.2d 1078. It is true that the clerk testified that on the 14th the trial judge told him he had decided at least to grant the motion for a new trial but that he might order judgment for the defendants, but that he was in doubt about his power to do so, and requested the clerk to ask the attorney for the defendants to call on the 15th to discuss that question. He also testified that the judge did not definitely decide to exercise the power until the 15th. This evidence would have supported a finding that the trial judge did not rule on the motion until the 15th, which was too late. But that testimony did no more than create a conflict. The trial judge stated that on the 14th he had definitely decided to order judgment entered for defendants and so informed the clerk, and that he assumed it would be entered that day. It is true that during his testimony the trial judge occasionally confused the granting of a new trial with an order directing entry of judgment for the other side, but reading his testimony as a whole it supports the order of October 24th. All conflicts with the supporting testimony must be disregarded. That being so, the two orders of October 24, 1944, must be affirmed.

‘On the merits, the judgment denying specific performance entered September 15, 1944, must be affirmed. The evidence shows the following facts: In October or November of 1943 the father of the owner of the property orally listed the real property in question with the licensed real estate brokers Hogan and Vest at a price of $30,000 net. This would mean $30,000 plus a commission of $1,250. On January 7, 1944, the real estate firm and plaintiff, who was then a tenant in the building in question, executed a document designated as a ‘Uniform Agreement of Sale.’ This agreement recites that $500 has been received from plaintiff on account of the purchase price of the real property in question. The conditions of sale are set forth in detail. It is signed by W. T. Hogan for Hogan and Vest, ‘Agent for Seller.’ Immediately under the broker's signature is the following:

“The undersigned, hereinabove designated as the purchaser, hereby agree[s] to purchase the above described property for the price and according to the conditions above specified. Subject to Approval of Seller.

(Signed) Fong Chuck, Purchaser.'

‘Immediately below this is a printed form of approval intended to be signed by the seller. The trial court found that this agreement of January 7, 1944, was signed by Hogan without the written authority of defendant owner. That finding is supported by the uncontradicted evidence, and is not challenged by plaintiff.

‘The evidence shows that on January 8, 1944, the broker delivered to defendant owner copies of the above agreement that had been signed by the broker and plaintiff. The total purchase price stated in that agreement was $31,250. Defendant owner signed ‘Chin’ in the space for approval on one of the copies but then stated that he would not sell unless the $30,000 net also included his income tax on the transaction. He testified that he customarily signed his name ‘Chin, Po Foon,’ and that ‘Chin’ was not intended as a complete signature—that he signed ‘Chin’ and then discovered that his and Hogan's intentions were not clear and for that reason did not complete the signature. He also stated that he and his father told Hogan when they listed the property and when he brought the agreement to them that they would not sell unless they could invest the money received in some suitable property. Defendant owner then wrote the broker a letter admittedly drafted by Hogan and recopied by defendant owner and addressed to the broker, reading: ‘In regard to the property owned by me at 822 1/212 824 Washington Street my father in quoting a price of $30,000.00 net did not figure in his price the income tax which amounts to some $2,200.00. I am now quoting to you the correct price we want for the property

This letter was signed by defendant owner and dated January 10, 1944. When it was delivered to Hogan, defendant owner and his father also discussed with Hogan prospective properties that were to be purchased by defendant owner if the sale went through, and Hogan gave defendant's father the addresses of three such properties, none of which were acceptable to defendant owner.

‘On January 11th the plaintiff re-executed the contract above referred to, changing the price to $33,450, and inserting the words ‘I hereby increase my offer to Thirty Three Thousand Four Hundred and Fifty ($33,450.00).’ Hogan took the reexecuted document to defendant owner telling plaintiff he would get the seller's signature. Defendant owner then refused to approve or to go through with the sale.

‘The complaint in this action simply alleges that defendants own the property, that on January 11, 1944, the defendants gave Hogan written authority to sell the property for $33,450, that plaintiff agreed to buy and defendants refused to sell. No estoppel or ratification is pleaded. It seems quite clear that the complaint does not state a cause of action (Thompson v. Scholl, 32 Cal.App. 4, 161 P. 1006), and that under the evidence the findings in favor of defendants are amply supported. There is no allegation or proof that defendants ever executed an agreement for the sale of the real property or that the broker had written authority to execute a contract of sale on the defendants' behalf. All that the pleadings and the proof show is that on January 10th the broker had written authority to list the property for sale. That is not sufficient to confer authority to enter into a binding contract of sale. Under §§ 2309 and 1624 of the Civil Code the authority of an agent to enter into a contract on behalf of his principal to sell real property must be in writing. The law is clear that a broker's authority under a written listing of real property is simply to secure a purchaser, and unless the writing expressly so provides, he has no authority to enter into a contract of sale. Thus where the broker is authorized ‘to sell’ he merely has authority to find a purchaser and he has no authority to bind the owner by a contract of sale, if no such power is expressly conferred. These principles are elementary and have frequently been stated by the courts. See many cases collected and commented on 4 Cal.Jur. p. 565, § 13; 3 Cal.Jur.Supp. p. 175, § 13. It must be remembered that we are not here dealing with cases involving the broker's right to his commission. Normally, the commission is earned when the broker produces a purchaser ready, able and willing to buy. But whether Hogan earned his commission on this deal is not involved in this case, and we refrain from expressing any opinion thereon. We mention the point only because most of plaintiff's cases deal with the rights of the broker. Those cases are not in point.

‘It is perfectly clear that when the property was orally listed with the brokers in 1943 they had no valid authority at all, in the absence of some facts, not here contended to exist, constituting an estoppel. On January 7, 1944, when Hogan signed the uniform agreement of sale as agent for the seller and accepted the $500 deposit from the buyer, it is equally clear that, then having no written authority at all, he had no legal right to bind the sellers to anything. That is admitted by plaintiff. Moreover, this so-called agreement obviously was an offer to buy inasmuch as it expressly provided it was subject to approval of the seller. So much is clear. This document provided for a selling price of $31,250. This was presented by the broker to the defendant owner for his approval. He started to write his name thereon, but before he had completed his signature, refused to go on with the transaction. So far it is clear, and plaintiff admits, no contract at all had been consummated. At that moment the sellers could have lawfully refused to sell to plaintiff or to any one else. Then defendant owner, at Hogan's dictation and request, signed the letter of January 10th. That letter is the key to the entire case. What does it provide? It is addressed to the brokers and simply authorizes them to quote the property at $33,450. It is obvious that if an authorization ‘to sell’ does not empower the broker to enter into a contract to convey, then an authorization ‘to quote’ the property confers no such authority. All that the letter of January 10th did was to list the property with the brokers at the fixed price. When Hogan received this letter he had written authority to seek a purchaser but no legal authority to bind the seller to a buyer.

‘This legal relationship was not changed by what happened on January 11th. On that date the prospective purchaser was shown the letter of January 10th and thereupon re-executed the documents of January 7th with the new purchase price of $33,450 inserted, and with the statement ‘I hereby increase my offer to Thirty Three Thousand Four Hundred and Fifty ($33,450.00)’ likewise written on the face of the document. This document still contained the provision that it was subject to the approval of the seller, which approval was never given. Legally the document constituted and the plaintiff designated it an offer to buy. That offer never having been accepted, and there being no facts pleaded or proved to constitute an estoppel, no contract of sale was ever entered into between plaintiff and defendants. Nor did the letter of January 10th constitute a ratification of what the agent had done on January 7th. It seems too clear to require citation of authority that the ‘quoting’ of a higher price could not be a ratification of a purported contract at a lower price.'

For the foregoing reasons the orders and judgment appealed from are affirmed.

PETERS, Presiding Justice.

WARD, J., and ATTERIDGE, J. pro tem., concur.

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Docket No: Civ. 12890.

Decided: February 04, 1946

Court: District Court of Appeal, First District, Division 1, California.

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