Waterman v. Boltinghouse

23 P. 195, 82 Cal. 659, 1890 Cal. LEXIS 626

Opinion

Thornton, J.

This is an action by plaintiff to recover commissions for an alleged sale of land. He never produced a purchaser ready and willing to buy on the terms of his employer, the defendant. He cannot, therefore, recover. (Dolan v. Scanlan, 57 Cal. 261; Moses v. Bierling, 31 N. Y. 462; Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; 22 Am. Rep. 441.)

Here the plaintiff had the exclusive right to sell for a term ending January 1, 1889, and the defendant, during this period, himself effected a sale. Though the plaintiff had the right to sell, to the exclusion of his employer, still he cannot recover his commissions unless he has produced a purchaser ready and willing to buy as above stated. This is expressly held, and correctly held, in Moses v. Bierling, supra, which is a case similar to this.

The plaintiff argues this case as if it was a suit to recover damages for defendant’s breach of contract. The complaint does not set forth any such action, but one to recover the compensation agreed to be paid on a sale.

There is no error.

Judgment affirmed.

McFarland, J., and Sharpstein, J., concurred.