H. A. C. McPHAIL, Appellant, v. A. W. BUELL, Respondent, 87 Cal. 115

Works, J. The appellant brought this action to recover for commissions alleged to have been due him for making sale of certain real estate for the respondent. The complaint is in different counts, one upon a special contract agreeing to pay the commissions, and the others relying upon a verbal contract and upon the quantum meruit. There could be no recovery on either of the last two counts, because the code of this state requires that, to entitle a .broker to recover commissions in this class of cases, his contract therefor must be in writing. (Civ. Code, sec. 1624; McCarthy v.

Loup, 62 Cal. 302.) It is equally clear, to our minds, that the appellant was not entitled to recover on the written contract. The agreement was, that the defendant would pay the plaintiff when the vendees paid to him (the defendant) th.e sum of twenty thousand dollars on account of the price of said sale, and execute to him their notes and mortgage for the balance of the purchase-money. The purchasers executed their notes and mortgage, but failed to pay the sum of twenty thousand dollars, either at the time of making the deed, or upon the notes given after-wards.

Although the defendant extended the time of payment, and used all reasonable means to procure the money, he was finally compelled to take back the property. Their failure to pay the money was a complete bar to any claim of the appellant to commissions. The appellant contends that certain errors were committed by the court below in its rulings upon the admission of evidence and in its instructions; but conceding this to be so, the case could not be reversed on account of such rulings, as, for the reasons given, the appellant could not recover in any event. Judgment and order affirmed.

Fox, J., and Paterson, J., concurred.