Pacific Southwest Development Corp. v. Western Pacific Railroad

I dissent for the reasons set forth by Mr. Justice Fourt in the opinion prepared by him for the District Court of Appeal in (Cal.App.) 293 P.2d 800 .

I dissent.

I agree with Mr. Justice McComb that an agreement to obtain an option to buy real property does not come within an agreement employing an agent “to purchase or sell real estate” within the statute of frauds inasmuch as it is nothing more than employing an agent to obtain personal property— a chose in action. (Civ. Code, § 1624, subd. 5.) In addition to the discussion in the able and learned opinion prepared by Mr. Justice Fourt for the District Court of Appeal (Cal.App.) 293 P.2d 800 adopted by Mr. Justice McComb, it should be mentioned that real property is defined as lands, tenements and hereditaments (Code Civ. Proc., § 17, subd. 2) and personal property includes goods, chattels and “things in action” (id., § 17, subd. 3). Hence an option being a chose in action is personal, not real, property. Real estate and real property are synonymous (City of Santa Barbara v. Maher, 25 Cal.App.2d 325 [ 77 P.2d 306 ]) and that is true with reference to the statute of frauds (Civ. Code, § 1624, subd. 5), *74 here involved. (Dabney v. Edwards, 5 Cal.2d 1 [ 53 P.2d 962 , 103 A.L.R. 822 ].) An agent’s charge for procuring a lease is not subject to the statute of frauds. (Dabney v.…

Plaintiff, a licensed real estate broker, sought compensation for alleged services rendered in connection with defendant’s procurement of an option to purchase certain real property. The amended complaint contained in. evidentiary detail all the facts on which plaintiff based its right to compensation, including the correspondence between the parties, which was set out in haeo verba. At the outset of the trial, the court declared its opinion that plaintiff could not recover because the pleaded agreement was not in writing as required by the statute of frauds. Plaintiff thereupon made an offer of proof, and it was stipulated that the documents pleaded in the amended complaint were deemed to have been offered in evidence, that an objection was made thereto and sustained by the court. Judgment was then entered for defendant, and plaintiff appeals.

As grounds for reversal, plaintiff contends: (1) that the pleaded agreement does not come within the statute of frauds; but (2) if the statute does apply, there was a sufficient writing as required; and (3) in any event defendant is estopped to rely on the statute as a defense. Our review of the record, in the light of the authorities…

I agree with Justice McComb that the judgment should be reversed but I prefer to place the reversal on another ground.

Regardless of whether an agreement employing a real estate broker, for a commission, to secure an option to purchase real property does or does not come within the provisions *72 of subdivision 5 of section 1624 of the Civil Code (and Code Civ. Proc., § 1973, subd. 5), I am of the view that plaintiff is entitled to a hearing on the merits of his claim.

The amended complaint alleges, and the offer of proof comprehends a showing, that: (1) Nelson, the negotiating salesman, was, throughout most of the period he was rendering the service to defendant, an employe of plaintiff broker; (2) defendant was aware of the above stated relationship, and its dealings with salesman Nelson, under the circumstances, appear to be dealings with Nelson’s employer, the broker-plaintiff; (3) defendant, through its authorized employe Stratton, wrote Nelson, “I think everything is in order for the acquisition of the property and as soon as the escrow is closed will get in touch with you so that the commission factor can be disposed of. Believe I told you we would pay 50% [sic]…