DocketNumber: Civ. No. 676.
Citation Numbers: 109 P. 265, 13 Cal. App. 283, 1910 Cal. App. LEXIS 196
Judges: --The
Filed Date: 4/19/1910
Status: Precedential
Modified Date: 10/19/2024
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 285 The action is for damages for the violation of a contract. In December, 1906, appellant procured from one Henderson an option on lots 5, 6, and east half of lot 7, bounded by M and N and Sixteenth and Seventeenth streets, in the city of Sacramento, for the sum of $16,000. Shortly afterward appellant entered into an agreement with respondent whereby she was to purchase the property for $16,250 and give him one-third of the profits above $16,250 when the property could be sold for as much as $19,000. Accordingly appellant procured Henderson to deed the property to respondent for said consideration, $250 of the amount being paid to Simmons.
In the spring of 1907 the parties herein reduced their agreement to writing, as follows: "Lots 5, 6 and east half of lot 7, M and N, 16th and 17th streets. Price paid $16,250, selling price $19,600. Mrs. Sweeney to receive 2/3 of the profit; D. J. Simmons to receive 1/3 of the profit. Signed, D. J. Simmons; Mary Sweeney." Appellant claims that "It is for the violation of said contract by respondent in preventing a sale of said property for $20,400 at an auction sale had April 23, 1908, and refusing to stand by the terms thereof and divide the profits, as provided in said contract, that damages are sought in this action."
The court found that said written agreement was executed by appellant and respondent, and further that in "April, *Page 286 1908, it was mutually agreed between the plaintiff and defendant that the plaintiff, who is an auctioneer, should advertise and sell said property at public sale, and that said property should not be sold at said sale for less than $21,000, and that if the bids for said property offered at said sale should not aggregate said sum of $21,000 said property should not be sold and should be withdrawn from sale, and that the plaintiff (defendant?) should have and receive as her portion of the purchase price of said property at said sale the sum of $21,000, and not less, and that defendant (plaintiff?) should receive all sums for which said property should be sold at said sale in excess of said sum of $21,000." It is further found that in pursuance of said agreement plaintiff advertised the sale to take place on Thursday, April 23, 1908, at 10 o'clock A. M.; that on said date he, "in the presence of the defendant and in the presence of various persons who were assembled at said sale, stated to the persons present at said sale that he would offer the said property in subdivisions and would receive bids upon said subdivisions so offered, and that after having offered all of said property in subdivisions for sale he would then offer the property as a whole for sale and receive bids thereon, and that in the event the bids offered for said property, either in subdivisions or as a whole, did not aggregate the sum of $21,000, that the sale of the property as a whole or in subdivisions would be declared off and that said property would be withdrawn from sale"; that the property was thereupon offered for sale and that certain bids were received for the subdivisions, aggregating less than $21,000. "That the said plaintiff, after he had received said bids as aforesaid, for said property in subdivisions, thereupon announced that he would offer the property for sale as a whole, and he thereupon did offer said property as a whole for sale, but received no bids therefor. Thereupon the said plaintiff, in the presence of defendant, and in the presence of said bidders aforesaid and the bystanders at said sale, declared that inasmuch as the bids offered for said property did not aggregate the sum of $21,000, that the said sale and the said sales of said subdivisions was and were off, and that the said property was withdrawn from sale, and the said bids or offers were, and each of them was, rejected." *Page 287
There is a finding, also, that none of said bidders made any tender to defendant or demanded a deed or renewed his bid or offer to buy said property or any of the subdivisions thereof.
The evidence is abundantly sufficient to support the finding that this parol agreement was made and that plaintiff conducted said auction in accordance with its terms. The testimony of the plaintiff himself is to that effect. He testified that "At that meeting Mrs. Sweeney said she wanted twenty-one thousand dollars for her interest in the property. I said this, that I would go on and advertise it, pay all the expenses out of my pocket, and would endeavor to get — she said the property ought to bring twenty-five thousand dollars, and she says 'if it brings enough to cover my interest and my expense' — I told her I did not think it would bring that much, but that it would bring twenty-two thousand five hundred, and she told me that at that time she wanted twenty-one thousand, and she said at that time that all I got over twenty-one thousand I could have. I advertised the property and said I would try and see. If the property brought twenty-two thousand five hundred I was to get fifteen hundred. If it brought twenty-five thousand I was to get four thousand. If the property did not bring twenty-one thousand, the sale was not to go and the sale was to be declared off; that was the distinct understanding. The day of the sale I cried the property in the usual way, offering the land in parcels. Before the sale I told the bidders I was going to subdivide it and offer it in parcels or pieces, as I described them how I was going to offer them, and told them that the highest and best bidder would get them, provided that it brought a certain amount; I said this very clearly. I do not think I told them how much it was to bring. I might have said that it must bring twenty-one thousand, but I don't recollect. I then told the various bidders on the subdivisions or several parcels I would offer the piece of property as a whole, and that if it did not bring the sum required by Mrs. Sweeney that the sale would be off. I thereupon cried the parcels and obtained certain bids on them. At the conclusion of the sale, so far as the sale of the subdivisions was concerned, I offered it as a whole, stating that the property did not bring *Page 288 the price Mrs. Sweeney wanted. I received no bids upon the property as a whole and I thereupon declared the sale off."
The terms of the agreement are recited in substantially the same way by respondent. She adds the statement that appellant declared he would take the responsibility on his own shoulders and pay the expenses of the auction sale and Mrs. Sweeney was to get $21,000.
There is thus shown a rescission of the written agreement and the substitution of the parol contract. In other words, we have the clear case of a novation, "the substitution of a new obligation for an existing one." (Civ. Code, sec.
If appellant intended to rely upon the first contract he should have declined to accept and act upon the proposition subsequently submitted by respondent. He was called upon to exercise his election and he chose to take his chances of getting a larger compensation under this second arrangement. *Page 289
The rule approved by our supreme court in Alderson v.Houston,
The specific grounds upon which appellant attacks the second agreement and the conclusion of the trial court drawn therefrom are, as stated by him: "Said so-called agreement was invalid and of no binding force on the rights, duties and obligations of the parties, or either of them, as laid down in the said written agreement, in this: 1. It was not a mutual agreement within the meaning of the law. 2. There was no sufficient consideration to support it. 3. It was an oral agreement conveying an interest in real property. 4. It was an unexecuted oral agreement changing the terms of a written agreement."
None of these contentions can be successfully maintained. The want of mutuality is affirmed on the pretext that appellant was coerced by the assumption of authority on the part of respondent. He was confronted, so it is claimed, by the menacing declaration that respondent "must have $21.000 for her share or there would be no sale." But it is too plain for argument that there was no interference nor attempted interference with the freedom of appellant's choice. We are not aware of any authority holding that such a declaration amounts to menace or duress. The record does not disclose anything in the appearance or manner of respondent calculated to inspire fear in the mind of appellant or to influence unduly his judgment. "The mere threat to withhold from a party a legal right which he has an adequate remedy to enforce, is not, in the eyes of the law, duress. Certainly not such as will evade the execution of a contract." (Cable v. Foley,
It is equally clear that there was a sufficient consideration to support the agreement. Appellant acquired the right to *Page 291 retain whatever was received for the property in excess of $21,000. It was believed that the property could be sold for such an amount as would amply compensate appellant for his services. That subsequent events proved the parties to be mistaken in their judgment does not affect the question of consideration.
If the property had been sold for a large amount in excess of the sum to be paid respondent it would be equally as reasonable to contend that there was no consideration for the contract. The truth is, of course, that the opportunity for benefit to both parties and the expectation of realizing it growing out of the terms of the agreement are sufficient to make it binding. If we were willing to concede the soundness of appellant's position that the agreement in question purported to convey an interest in real property it would signify nothing, as it is manifest that it was entirely executed and therefore taken without the statute of frauds. "An executed contract is one the object of which is fully performed." (Civ. Code, sec.
When it was found that the property would not bring $21,000 there was nothing left for appellant but to declare the bids rejected and the property withdrawn from sale. This was done voluntarily by appellant and the contractual relation terminated. It may be that he would have been authorized to advertise the property again and repeat the effort to sell, but that question is not involved, since appellant pursued the matter no further, but treated the contract as at an end and brought suit for his commission.
But, in addition to the foregoing, it must be said that if the parol agreement was invalid appellant has not shown himself entitled to recover under the written agreement. Since he acquiesced in the new proposal the most that could be claimed would be that the written contract is still operative. But as a basis for any commissions under this, appellant must prove that he obtained a purchaser for the property. "Before a broker can be said to have earned his commission it must be shown that he provided a purchaser who was ready and willing to make the purchase in accordance with the terms imposed by the seller." (Zeimer v. Antisell,
There can be no doubt, we think, that the findings are supported by the evidence and that no error was committed by the lower court.
The order denying the motion for a new trial is affirmed.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 17, 1910.