Rose v. Gardner

19 P.2d 1009, 130 Cal. App. 302, 1933 Cal. App. LEXIS 912

• Court: California Court of Appeal
• Decided: March 9, 1933
• Docket: Docket No. 7573.
• Status: Published

Opinion

HOUSER, J.

Defendant Hagerman appeals from a judgment which was rendered against him in an action to recover an amount due plaintiff for services performed by him as a broker on the exchange of real property between defendants and third persons.

Appellant presents two points, namely:

“1. The cancellation by the parties of a contract of exchange cancels the broker’s contract for commissions contained therein.

“2. The contract of exchange was unenforceable, and hence the agreement to pay a commission was without consideration."

If for no other reasons, neither of the positions assumed by appellant is tenable; because, first, the appeal is presented on the judgment-roll only, and an inspection thereof fails to disclose that the contract for the exchange of the properties in question, upon the sale price of which the commission claimed by plaintiff is based, was ever canceled. Secondly, by the terms of the exchange agreement (which is the only instrument by which an agreement to pay a commission is evidenced), the defendant not only agreed to pay to plaintiff the commission on the execution of the said exchange agreement, but also agreed that “in the event any error cannot be corrected, this agreement shall be null and void, except as to the payment of commissions, unless the title to the property affected is accepted subject thereto”.

The judgment is affirmed.

Conrey, P. J., and York, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on April 7, 1933, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on May 8, 1933.