Johnson v. Krier

This is an appeal by the defendant from a judgment against him for $2,000, in an action to recover that amount upon a written agreement to pay the same as a commission for the sale of certain land in the county of Tulare, state of California.

The trial court found that on or about December 1, 1920, the plaintiffs, acting at the special instance and request of the defendant, sold to one Lowell M. Washburn and Virginia Washburn the real property described in the complaint herein; that said sale was evidenced by a written contract of sale, dated December 1, 1920, and executed by the said defendant and the said buyers, Lowell M. Washburn and Virginia Washburn. That thereupon the said defendant made, executed, and delivered to plaintiffs an agreement in words and figures as follows, said agreement being written on the back of the above-mentioned contract of sale and signed by the said defendant:

"I hereby agree to pay Johnson and Temple a commission of $2,000 for the making of the within sale.

"Dated: December 1, 1920.

"P. KRIER."

There also appears a further finding that said commission has never been paid to the plaintiffs, and judgment for the same followed.

[1] The first contention of the appellant is that the contract between himself and the Washburns was not a sale, but a contract to sell, and that plaintiffs have not earned a commission upon a "sale" by securing merely a contract of purchase and sale which was to ripen into an executed sale in the future. There is no merit in this contention. The agreement appearing in the record is somewhat lengthy and there seems to be no necessity of setting it out fully herein. It is entitled "Contract of Sale" and provides in part:

"This agreement, made and entered into this 1st. day of December, 1920, by and between Peter Krier and Margaret Krier, his wife, parties of the first part, and Lowell M. Washburn and Virginia Washburn, his wife, parties of the second part, WITNESSETH: That the parties of the first part hereby agree to sell to the parties of the second part and the parties of the second part agree to buy that certain property situate in the County of Tulare, State of California, and more particularly described as follows, to-wit":

Then follows a description of the property, a statement of the price ($47,000), the terms of sale, the security to be deposited for the unpaid portion of the purchase price and provisions relating to other details of the arrangements between the parties. The said contract was signed by Peter Krier, Lowell Washburn, and Virginia Washburn.

The cases of Phelps v. Prusch, 83 Cal. 626 [23 P. 1111], and Gunn v. Bank of California, 99 Cal. 352 [33 P. 1105], settle the question raised by the appellant. In the last cited case it is said: "It is, of course, well settled that when a broker employed simply to negotiate a sale of real property has found a purchaser able, ready and willing to purchase upon the vendor's terms, his right to the agreed commission is complete, and does not depend upon the final acceptance by the purchaser of a conveyance of the property sold." Numerous cases are cited in support of this statement of the law.

[2] In the present case the agreement to pay commission was not reduced to writing before the rendition of the services by the plaintiffs, but after plaintiffs had procured the purchasers the oral agreement was ratified in writing and so the bar of the statute of frauds was removed. (Sec. 2310, Civ. Code.) [3] The defendant accepted the purchaser by entering into a valid contract with him and cannot now raise the questions of his readiness, willingness, and ability to make the purchase. (Sobaje v. Schubert, 37 Cal.App. 709 [174 P. 364]; 4 Cal. Jur. 592.)

Appellant also contends that as Margaret Krier, the wife of the defendant, did not sign this contract of purchase and sale, it is not one that could be specifically enforced by the courts. The case of Jackson v. Torrence, 83 Cal. 521, at p. 537 [23 P. 695], is relied upon. It is true that the rule, as there announced, is that an executory contract of a married woman to convey real property, which contract has not been acknowledged in the manner provided by law, cannot be specifically enforced. But this proposition is beside the mark in the present case. [4] This is not an action for specific performance; and it is also the rule that a refusal of the wife of a vendor to join in a deed conveying the subject of the agency does not deprive the broker of his right to compensation. (4 Cal. Jar., p. 597; Farrington v. McClellan,26 Cal.App. 375, 383 [146 P. 1051]; Justy v. Erro, 16 Cal.App. 519, 522 [117 P. 575]; Goodrich v. Turney, 44 Cal.App. 516 [186 P. 806].)

[5] Another objection of appellant is based upon the fact that the contract for the payment of commissions does not specifically describe the real property to be sold. It is contended that the memorandum is insufficient to satisfy the statute. But the memorandum of the agreement for commissions is attached to the contract for the purchase and sale and refers expressly to said contract of purchase and sale, and the description of the property therein contained. This is sufficient.

[6] The other objections of the appellant relate to the asserted injustice of allowing compensation to plaintiffs when the sale was never consummated and the defendant has received nothing of value. The evidence appearing in the record was conflicting as to the reasons for the failure to complete the transaction. The court might have concluded that either one of the parties was to blame. Appellant, therefore, argues at some length that Washburn, the purchaser, was to blame for the abandonment of the contract. But, however that may be, it is immaterial here. If the defendant's fault was the cause of the breach, that does not relieve him from payment of the agent's commission, and if the purchaser was at fault, defendant had his remedy against him at law. There is no contention that the plaintiff caused the breach. The agent's commission is not dependent upon the validity or invalidity of his principal's title (4 Cal. Jur. 601, sec. 36, and cases there cited), nor upon the performance by the purchaser of the conditions of his agreement, in the absence of a special contract making the payment of commission contingent upon these matters. (4 Cal. Jur. 603, sec. 37.)

The judgment is affirmed.

Nourse, J., and Sturtevant, J., concurred.

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 December 11, 1922.

All the Justices present concurred.