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Keywords

contractplaintiffdefendantdamagesstatuteobjectiongood faith
contractplaintiffdefendantdamagestrialmotionwill

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Augustine v. Trucco, 124 Cal.App.2d 229, 268 P.2d 780

Facts

The plaintiff, a licensed real estate broker, entered into a written agreement with the defendants, the Trucco couple, to sell their property for $72,500, which expired ten days later. After the expiration, the defendants allegedly requested the plaintiff to continue his efforts to find a buyer, which he did, but they later sold the property to a buyer he had previously introduced. The plaintiff claimed he was entitled to a commission based on his efforts, but the defendants contended that the agreement was no longer valid after its expiration.

On November 21, 1949, defendants Trucco, husband and wife, were the owners of a parcel of improved realty in Los Angeles. On that date, defendant Angelo Trucco gave plaintiff, in writing, the exclusive right to sell the property for $72,500. The employment contract expired on December 1, 1949, ten days later. In executing the contract defendant Angelo Trucco acted for himself and as agent for his wife.

Issue

Did the plaintiff broker state a cause of action for recovery of commissions and damages against the defendants?

Did the plaintiff broker state a cause of action for recovery of commissions and damages against the defendants?

Rule

To recover a commission, a broker must show that he performed services in accordance with the terms of the employment contract and within the time limit specified. If the contract is not in writing, as required by the statute of frauds, the broker cannot recover. Additionally, an oral modification of a written contract must be supported by consideration to be valid.

To entitle a broker to recover a commission, he must show that he performed the services required of him in accordance with the terms of his employment contract and within the time limited in the contract, or within such extension of time as may have been granted by his principal. If he fails to do so, he is not entitled to the commission even though he made efforts to sell and first caused the property to be called to the attention of the person who subsequently made the purchase.

Analysis

The court found that the plaintiff did not procure a buyer within the time limit of the original contract and that the alleged oral modification was invalid due to lack of consideration. The defendants' refusal to accept the offer presented by the plaintiff was deemed justified, as the plaintiff's efforts did not meet the contractual requirements. The court also noted that the defendants acted in good faith and were not estopped from asserting the statute of frauds.

The first count does not state facts sufficient to constitute a cause of action against defendants Trucco. After December 1, 1949, plaintiff's services were not rendered pursuant to any contract or memorandum in writing authorizing him to sell the property. He was acting as a mere volunteer. During the ten days that plaintiff's contract was in effect, he did not find a purchaser ready, willing, and able to buy according to the terms of the contract. When the contract expired on December 1, 1949, the relations between plaintiff and defendants Trucco were as though the contract had never been executed.

Conclusion

The court affirmed the judgment, concluding that the plaintiff failed to state a cause of action for recovery of commissions.

The judgment is affirmed.

Who won?

The defendants, Trucco, prevailed in this case as the court upheld their objection to the introduction of evidence based on the plaintiff's failure to state a cause of action. The court reasoned that the plaintiff's claims were not supported by the necessary legal framework, particularly the requirement for a written contract under the statute of frauds, and that the defendants had acted within their rights in refusing to accept the offer presented by the plaintiff.

The trial judge expressly stated he did not deny the motion on the ground it came too late, but on the ground that neither the proposed fifth nor sixth count stated facts sufficient to constitute a cause of action.

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