EUGENE McCARTHY v. L. LOUPE, 62 Cal. 299

Sharpstein, J.: The Code provides that “An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission” is “invalid unless the same or some note or memorandum thereof, be in writing and subscribed by the party to be charged, or by his agent.” (C. C., § 1624). It is not claimed that the agreement in this case or any note or memorandum thereof was in writing.

But it is claimed that the plaintiff may, nevertheless, recover what his services were reasonably worth, upon a promise implied by law, by reason of the loss which he has sustained in rendering the service, and the benefit received by the defendant in accepting the same. That there are cases in which the law will imply a promise to pay for services rendered by one person for another in the absence of any actual promise to pay therefor, can not be doubted.

But no case has been brought to our attention in which it has been held where proof of employment is indispensable to a right to recover for services, that in the absence of such proof a recovery can be had. And to entitle a broker to recover commissions for effecting a sale of real estate, it is indispensable that he should show that he was employed by the owner (or on his behalf) to make the sale. (Pierce v. Thomas, 4 E. D. Smith, 354; Hinds v. Henry, 36 N. J. Law, 328; Edwards on Factors, 144).

But for the provision of the Code above cited it may be that the absence of an express contract might be supplied by proof of usage regulating transactions of this kind. (Wilkinson v. Martin, 8 Car. & P. 1; Burnett v. Bouch, 9 id. 620; Read v. Rann, 10 B. & C., 438; Winsor v. Dillaway, 4 Metc. 221; Cook v. Welsh, 9 Allen, 350.) But it was held in Hinds v. Henry, supra, that a plaintiff in such a case could not recover under the common counts. It would seem, therefore, that no recovery could have been had before the Code, without proof of an express contract or of a usage regulating such transactions.

The law in such a case would never imply a contract. Since the Code, no express contract in a case like this can be of any avail unless in writing. This particular kind of contract can only be proved by the introduction of an instrument in writing. Therefore the plaintiff failed to prove an express contract, and it was upon an express contract alone that he was entitled to recover. This is not the ground upon which the Court granted the motion for a new trial, but it is a ground upon which the respondent was entitled to have a new trial. Therefore we can not disturb the order granting it. Order affirmed.

Morrison, C. J., and McKinstry, Myrick, Boss, and McKee, JJ., concurred.