Gairaud v. Silva , 86 Cal. App. 662 ( 1927 )

NOURSE, J.

Plaintiff sued upon a written contract whereby the defendant promised to pay for services rendered by the plaintiff as a real estate broker. Plaintiff had judgment and the defendant has appealed upon a typewritten transcript.

The complaint alleged that the defendant employed plaintiff to negotiate the exchange of certain land owned by the defendant and promised to pay to the plaintiff a commission for such services when the latter had procured an acceptance in writing of defendant’s offer of exchange; that the plaintiff procured such acceptance and defendant accepted all the terms and conditions of the proposed exchange. The answer set up special defenses pleading the confidential relationship between the plaintiff and defendant running over a period of years. It was alleged that prior to the execution of the written agreement the plaintiff and defendant had orally agreed that no commission would be due from defendant to the plaintiff unless the exchange of the lands was completed; that defendant, who was unable to read or write, relying upon the confidential relationship between the parties, did not ask to have the written contract read to him, but executed the same by inscribing his mark thereto at the special request of the plaintiff and without knowing that the writing called upon him to pay the commission upon the plaintiff’s procuring a written acceptance of his offer.

The trial court found that all the allegations covering these special defenses were untrue and the only question upon this appeal is whether these findings are supported by the evidence. The defendant and appellant admitted upon the witness-stand that no prior oral negotiations covering the payment of a commission were had. He testified that the respondent explained the terms of the agreement to him and for that reason he did not request that the written instrument be read to him. Three witnesses called by the respondent testified that the written agreement was read to the appellant word for word before the appellant signed it and that the matter of the payment of the commission was fully explained to him. There is no merit in the appeal.

Judgment affirmed.

Sturtevant, J., and Koford, P. J., concurred.