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cient to bring him within the category of a defendant gave to the plaintiff a letter which traveling employé, and thus to make this in effect provided that if certain options case one of those exceptional cases to which theretofore given to plaintiff by the defendthe general rule for which the petitioner ant, and which by their terms expired on herein contends has no application.

June 15, 1914, were accepted, plaintiff should We are of the opinion that the evidence in be allowed 5 per cent. commission, of which, this case fully sustains the position for should the sum of $7,500 be received by dewhich the respondent herein contends, and fendant, on account of a sale of the land that the following authorities as a matter of made pursuant to said option, on or before law support that contention: Garratt-Calla- June 15, 1914, $1,500 should be paid to plainhan Co. v. Industrial Accident Commission, tiff on account of said commission. On 171 Cal. 334, 153 Pac. 239; Brown v. Indr. June 8, 1914, the defendant entered into a Acc. Comm., 163 Pac. 664; Cameron v. Pills-contract with A. D. Bowen, a prospective bury, 173 Cal. 83, 159 Pac. 149; Kunze v. purchaser introduced by the plaintiff, for Detroit Shadetree Co., 192 Mich. 435, 158 N. the purchase of the property involved, which W. 851, L. R. A. 1917A, 252; Milwaukee v. contract departed from the terms of said Althoff, 156 Wis. 68, 145 N. W. 238, L. R. A. options, and stipulated that the total pur1916A, 327.

chase price should be $63,500, payable as It follows that the writ should be denied, follows: June 11, 1914, $1,000; September and it is so ordered.

1, 1914, $5,000; November 1, 1914, $10,000 ;

November 1, 1915, $23,750; November 1, 1916, (35 Cal. App. 684)

$23,750; and also provided that if the purPRINCE V. SELBY SMELTING & LEAD chaser should fail to make the payments due CO. (Civ, 2247.)

on or before the 1st day of September, 1914, (District Court of Appeals, First District, Cal. or on or before the 1st day of November, 1914, ifornia. Dec. 27, 1917.)

any payment theretofore made should become BROKERS C 64 (2)—Right to COMMISSIONS- the property of the vendor, and all obligations FAILURE OF PURCHASER TO PERFORM.

under the agreement should cease and deAfter a contract was made for the sale termine. Bowen paid the $1,000, the first of property providing for payment in installments, and that the vendor's obligations there- amount due, but no further payment was under should cease on the purchaser's default, ever made on account of the contract. On an agreement was made between the vendor and June 12, 1914, the defendant wrote to the ker's commission when payments of $5,000 and plaintiff a letter which, after referring to $10,000 were made by the purchaser, and spe- the options held by plaintiff, and to which cifically providing that, if the purchaser failed the letter of May 28th referred, set forth in to carry out his contract, the broker should not be entitled to commission beyond the detail the terms and dates upon which amount due at the time of the purchaser's de- plaintiff's commission would become payable fault. Held that, where the purchaser was un- under the contract with B en-this reable to make the payments of $5,000 and $10,000, and the vendor extended the time of pay- arrangement of terms and dates following ment on condition that if the payments were the particulars in which the contract entered not made at the time as so extended the contract into with Bowen departed from the options would lapse, and the payments were never made, the vendor was not liable to the broker for como upon which the letter of May 28th covering missions because of the extension of time or plaintiff's commission had been based-and because the broker had no notice thereof when stated that the first payment of commission the extension was made.

would be made when the $5,000 due from Appeal from Superior Court, City and Bowen on September 1, 1914, was paid, and County of San Francisco; Geo. A. Sturte- that plaintiff was to receive the balance of vant, Judge.

his commission when Bowen made the furAction by Charles M. Prince against the ther payment of $10,000 on November 1, Selby Smelting & Lead Company. From a 1914. It also specifically provided that if judgment for defendant, plaintiff appeals. Bowen failed to carry out his contract conAffirined.

cerning the payments due on November 1. Finlay Cook, of San Francisco, for appel- 1914, and prior thereto, then the plaintiff lant. Chickering & Gregory, of San Fran- should not be entitled to commission beyond cisco, for respondent.

the amount that might have been due at the

time of Bowen's default. The terms of this PER CURIAM. This is an action by plain- letter as a modification of his original agreetiff as a real estate broker to recover com- ment as to commission were accepted by mission alleged to be due him for effecting a the plaintiff in writing. It thus appears that sale of real estate belonging to the defend- the obligations assumed by defendant to ant.

plaintiff by its letter of May 28th were by There is no dispute as to the facts, and consent of both parties concerned superseded the proposition of law involved is simple. by the obligations created by the new agreeThe following is a brief synopsis of the steps ment. in the transaction: On May 28, 1914, the On September 1, 1914, the date upon which

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexen

there became due from Bowen to the defend-, the power of the owner to convey that would ant the sum of $5,000, an extension of 30 cause injury to the broker. The court said: days was granted to Bowen to make this "The extension of the time, while it was a payment upon his representation that he was modification of the contract, was one which unable to make it upon its due date. On

caused no injury to the plaintiff, but rather

tended to benefit him, because the indulgence November 1, 1914, the $5,000 still remaining to Samuel rendered it more likely that he would unpaid, Bowen informed the defendant that have been able to carry the entire contract inhe was unable to make either that payment failed to make any 'effort to perform the con

to effect; and when, after the modification, he or the one of $10,000 then also due, where- tract as modified, his position with regard to upon an extension of time until January 1, it was precisely the same as it would have been 1915, was granted upon the condition, how-entitle himself to a delivery of the deeds on the

had he failed to perform the whole contract, and ever, that if these sums were not paid at that 2d of January, 1895. In each case the contime, Bowen's contract would finally lapse. tract was at an end if the defendant chose to

consider it so. As before stated, the payments were never

The plaintiffs surely can have

no greater right to insist that the defendant made; so it appears clear that under the violated its contract with Samuel to his hurt, plain terms of the letter of June 12, 1914, the because he forfeited the contract for failure to rights of the plaintiff terminated by the than he would have done had he failed to per

perform a part of it on the 2d of January, 1895, final default of Bowen. We see no merit in form the whole of it. * The only thing plaintiff's contention that the defendant, by that it (the vendor] bound itself to do by its

contract with Seymour was not to do any act granting to Bowen an extension of time in which would put it out of its power to carry a which to make his payments, became imme- contract into effect when Samuel should oifer diately liable to the plaintiff for his entire to perform it, and, if it continued able and commission. It will be recalled that under performance to be bad or was willing to perform

ready to perform so long as Samuel desired the this commission agreement the plaintiff was on his part, it did all that Seymour could renot entitled to anything unless Bowen paid fore, did not affect the rights of the parties."

. The modification of the contract there. $5,000 on September 1st. Therefore on that date, since Bowen had not made the pay

The Seymour Case was affirmed without ment, the defendant had a perfect right to opinion, and is reported in 159 N. Y. 524, 53 terminate the contract, and by the express Larson V. Burroughs, 131 App. Div. 877,

N. E. 1132. It was cited with approval in terms of the commission agreement the plaintiff would thereby have lost his rights to any 116 N. Y. Supp. 358, in which the court said: commission; but, since the defendant did show either that the contract was carried out

“Before the plaintiff could recover, he must not elect to then declare the contract for- as indicated, or that nonperformance was the feited, but, on the contrary, gave Bowen some fault of the defendant." extensions of time, it is claimed that there

The judgment is affirmed. by the plaintiff acquired some rights superior to those which he would have enjoyed if

(35 Cal. App. 724) the extensions' had not been granted. Stress GRAZER v. FLANAGAN et al. (Civ. 2241.) is here laid upon the point that the plaintiff (District Court of Appeal, First District, Caliwas not informed of these extensions, at fornia. Dec. 29, 1917. Rehearing De least at the time they were granted; but this

nied Jan. 28, 1918.) is immaterial. The defendant could have 1. LANDLORD AND TENANT Cw150(1)-LAND

LORD'S LIABILITY-REPAIRS. declared Bowen's contract forfeited on Sep

At common law, a lessor is not bound to tember 1st, and there was no necessity on its make repairs to a dwelling house, unless so repart of notifying the plaintiff of that fact. quired by express contract or covenant, the tenOf course, if Bowen had paid his money durant taking the premises as they are, and hav

ing no right to involve the landlord in expenses ing the time as so extended, then the plain- for repairs without his consent. tiff would have been entitled to his commis- 2. LANDLORD AND TENANT C106, 150(5) sion. In other words, this act of extension,

FAILURE TO MAKE REPAIRS-REMEDIES OF

TENANT-STATUTE. so far from being in contravention of any

Civ. Code, 8 1941, requiring the landlord to of the rights of the plaintiff, was distinctly make a dwelling house fit for its purpose, which for his benefit. Before a party can com- is limited by section 1942, giving the tenant the plain of any modification to his agreement he option, after notice, to make repairs at the land

lord's expense, or to vacate the premises, conmust show some prejudice.

trol in the absence of express contract to reThe case of Seymour v. St. Luke's Hospi- pair, and thereunder the tenant may treat the tal, 28 App. Div. 125, 50 N. Y. Supp. 993, is lease and vacate, or may himself make the repairs

landlord's failure to repair as a breach of the referred to by plaintiff's counsel in his brief. at the landlord's expense, after notice, provided On the particular points now under discus- they do not exceed one month's rent. sion that case is against him, because it was

3. LANDLORD AND TENANT O154 (2) -FAIL

U'RE TO MAKE REPAIRS-PERSONAL INJURYthere held that the fact that the owner ex LIABILITY. tended the time of the purchaser in which A tenant or any member of his family snga payment must be made did not give the taining personal injury from a breach of the broker any additional rights, for it is only a damages therefor in an action for breach of cor

landlord's covenant to repair cannot recover change in the contract which puts it out of enant.

4. LANDLORD AND TENANT 169(3)-TAIL-, ord and the briefs is, Does the complaint
ORE TO MAKE REPAIRS— PERSONAL INJURY state a cause of action against the defend-
-SUFFICIENCY OF COMPLAINT.
Complaint, in an action, construed as an ac-

ants? tion ex delicto to recover damages for personal

[1, 2] At the common law a lessor is not liinjury to a tenant's child resulting from the able to make repairs to a structure rented as landlord's negligent failure to make repairs, al- a dwelling house unless by force of an exleging the defect causing the injury to have been obvious and to have existed when the tenancy press contract or covenant; the tenant takes began, without alleging facts and circumstances the premises for better or worse, and cannot which would relieve the plaintiff of the infer- involve the landlord in expense for repairs ence of contributory negligence, was insufficient. without his consent. Van Every v. Ogg, 59

Appeal from Superior Court, Alameda Cal. 563. The Civil Code, however, in secCounty; Everett J. Brown, Judge.

tion 1941, provides that the lessor of a buildAction by Harold F. Grazer, by Annie M. ing intended for the occupation of human beGrazer, his guardian, against Theresa Flana- | ings must, in the absence of an agreement to gan and others. From a judgment entered the contrary, put it in a condition fit for such upon an order sustaining the demurrer to occupation, and repair all subsequent dilapiplaintiff's amended complaint, plaintiff ap- dations thereof which render it untenantable. peals. Affirmed.

The succeeding section (1942) gives the option Ostrander, Clark & Carey and A. J. Wool to the tenant, after notice to the landlord, to sey, all of Oakland, for appellant. Fitzgerald, make repairs not requiring an expenditure Abbott & Beardsley, of Oakland, for respond of more than one month's rent, the same to ents.

be deducted from the rent, or to vacate the

premises and be discharged from performKERRIGAN, J. This is an appeal from ance of the conditions of the lease. In the the judgment entered upon an order sustain- absence of an express contract relating to reing defendant's demurrer to plaintiff's pairs, sections 1941 and 1912 control; and amended complaint in an action brought to in such case it is held that the statutory lirecover damages for personal injuries. ability of the lessor declared in 1911 is lim

The action is through the plaintiff's guard-ited by the provisions of 1912, so that for ian, and the injuries are alleged to have failure to repair the lessee has either one of been sustained by plaintiff as a consequence two remedies, viz.: (a) Treat the failure to of an explosion of gas occurring upon certain repair as a breach of the lease and vacate premises which had been rented to the plain the premises; or (b) himself make the retiff's parents by the owners thereof to be oc- pairs at the expense of the landlord after cupied as a dwelling.

notice to him, providing they do not entail an Stripped of legal verbiage, it appears from expenditure of more than one month's rent. the complaint that on the 230 day of March, Van Every v. Ogg, supra; Sieber v. Blanc, 76 1915, the plaintiff's mother and a real estate Cal. 173, 18 Pac. 260 ; Gately v. Campbell, 124 agent, one of the defendants, visited the Cal. 520, 57 Pac. 567. house in question, and after an inspection of

[3] If this is to be regarded as an action the same and some negotiations, it was for damages for breach of the landlord's covagreed that the plaintiff's parents should be enant to repair, the great weight of authorcome the tenants of the property at a month-ity agrees that in such an action on the part ly rental of $18.50; that while the rent of the tenant or any member of his family should not commence until April the tenant damages for personal injuries are not recovshould have the privilege of taking posses- erable. 2 Underhill on Landlord and Tension on the 25th of March, and it was fur-ant, p. 849; 18 Am. & Eng. Ency. of Law, ther agreed that the owners of the property 234, 235; Jones on Landlord and Tenant, $ represented by the agent should place the 592; Anderson v. Robinson, 182 Ala. 615, 62 premises in proper repair for habitation, and South. 512, s. C. 47 L. R. A. (N. S.) 330, Ann. that they, through their said agent, "in par. Cas. 1915D, 829. ticular did promise to place in proper condi- [4] On the other hand, if this is to be taktion for use a certain gas pipe in said en to be an action ex delicto to recover damdwelling house

which was at the ages resulting from the negligent failure of time without a cap or other appliance to pre- the landlord to perform his legal duty by vent the escape of gas." It is also alleged in making the repair in question, then we are the amended complaint that on said 25th day satisfied that the complaint fails to state a of March, while the plaintiff was assisting cause of action, and hence that the demurrer his parents in moving into the dwelling was properly sustained. The defect to which house, and while in that portion of the house the plaintiff attributes the injuries complainin which said uncapped gaspipe was situated, ed of is alleged to have been an obvious dethere was an explosion of escaped gas from fect, and to have been known to exist before the uncapped pipe, which explosion caused the tenancy in question began. Having thus the personal injuries set forth in the com- averred the defect to have been obvious, it plaint. The demurrer was general and spe- was incumbent upon the plaintiff to have fur. cial, and the question presented by the rec-ther set forth in the complaint such of the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ITY.

facts and circumstances attending and ex- , court of Solano county pursuant to section plaining the accident, if such exist, as would 1138 of the Code of Civil Procedure. Since have relieved the plaintiff's case of the in- 1884 the town of Suisun City has been a ference of contributory negligence, which oth-municipal corporation of the sixth class, and erwise would arise from his express aver- has never owned nor controlled any public ment of the obvious nature of the defect works for supplying artificial light. From which was the immediate cause of the inju- September, 1900, until June 1, 1910, one ries complained of. Having failed or being Leonard Prior owned and operated an elecunable to do this, the complaint did not state tric distributing system embracing poles and a cause of action. Hatch v. McCloud River wires suspended therefrom, constructed on L Co., 150 Cal. 111, 88 Pac. 355; Callahan the streets and highways of said town, and v. Loughran, 102 Cal. 476, 36 Pac. 835. used for supplying the town and its inbabit

It follows that the trial court correctly ants with electric light and power. On Jan. sustained the demurrer to the amended com- uary 3, 1903, the board of trustees adopted plaint. The judgment is affirmed.

an ordinance purporting to grant to Prior and

his assigns the franchise to construct and We concur: LENNON, P. J.; RICH- maintain poles and wires upon said streets ARDS, J.

for the purpose of transmitting electric ener

gy, and to sell and dispose of electricity for (35 Cal. App. 380)

light and power. Section 12 of the ordinance TOWN OF SUISUN CITY v. PACIFIC GAS provides that the successful bidder and his & ELECTRIC CO. (Civ. 1678.)

assigns must, during the life of the franchise, (District Court of Appeal, Third District, Cali- pay to said town 2 per cent. of the gross an

fornia. Aug. 6, 1917. On Petition for Re- nual receipts arising from the use, operation, hearing, Sept. 5, 1917. On Rehearing, Nov. and possession of said electric system. On 22, 1917. Rehearing Denied by Supreme June 1, 1910, Prior sold to defendant said Court Jan. 21, 1918.)

electric plant and business connected there1. MUNICIPAL CORPORATIONS Ow285 – FRAN- with and all the rights granted to him by secCHISE FOR SUPPLYING ELECTRICITY_VALID

tion 19 of article 11 of the Constitution of Under St. 1901, p. 265, § 1, as to granting this state, and whatever franchise he reby municipality of privilege to locate poles or ceived by virtue of said ordinance of Jan. wires for transmitting "heat and power” and sections 3 and 5 as to publication of the appli- uary 3, 1905. Ever since said June 1, 1910, cation for the franchise and percentage to be the defendant has owned and operated all of paid to the municipality, an ordinance, purport- said property for the purpose of supplying ing to grant a franchise to construct and main- said town and its inhabitants with electric tain poles and wires for the purpose of transmitting and selling electricity for "lighť and light and power, no poles or wires being power" was void, in so far as it attempted to used exclusively for light or power purposes, confer the privilege of furnishing electricity the electricity for power and for light being for lighting purposes, and a charge could only delivered, measured, and charged for sepabe made for the latter or "power" franchise, in view of Const. art. 11, $ 19, granting to pub- rately, and the receipts therefor being kept lic service corporations engaged in the sale of in separate accounts. electricity the right to enter the streets of a city The contention of defendant, as set forth and use the same for laying down pipes, etc., in said agreed statement of facts, is that for the purpose of supplying electricity to the inbabitants for “illuminating" purposes.

said ordinance could and did legally grant 2. MUNICIPAL CORPORATIONS Ow285—VALID only a franchise for the purpose of transITY OF ORDINANCE-ESTOPPEL. As plaintiff town had no power to charge a holder thereof to pay to said town 2 per cent.

mitting electric power, and obligated the percentage on the gross annual receipts arising from the operation of an electric system for only of the gross annual receipts from the sale lighting, defendant, owner of the systein, would of said power, and could not, and did not not be estopped to deny that so much of an legally, obligate the holder thereof to pay any ordinance as attempted to impose such charge was unenforceable.

percentage for the sale of electricity for light

ing purposes, as the franchise and privilege Appeal from Superior Court, Solano Coun- of using said streets and highways for the ty; W. T. O'Donnell, Judge.

purpose of furnishing illuminating light were Action by Town of Suisun City against the granted by section 19 of article 11 of the Pacific Gas & Electric Company. From the state Constitutiou. On the other hand, plainjudgment rendered, defendant appeals. Modi- tiff contends that said ordinance could and fied and affirmed.

did legally grant the franchise to construct, Wm. B. Bosley and Leo H. Susman, both of erect, and maintain said poles and wires for San Francisco, for appellant. Theodore w. both of said purposes, and obligated the Chester, of Sacramento (George J. Raymond, holder thereof to pay said percentage of the of Sacramento, of counsel), for respondent. sales for power and light to said town and its

inhabitants. BURNETT, J. This appeal is from a judg Another position taken by respondent is ment for $927.84 and interest upon an agreed "that, even if the lighting privilege is corstatement of facts submitted to the superior ered by the Constitution, the gas company

admittedly received a franchise it was not, that appellant claimed a reversal on other entitled to under the Constitution, to wit, grounds, and to them the opinion was specificthe power privilege, and this is ample con- ally addressed, but whether the constitutional sideration for the obligation to pay 2 per cent. provision was broad enough to include the of the total receipts, as provided in the fran- franchise in question was so fundamental and chise, which is a contract between the par- obtrusive as necessarily to challenge the atties. Furthermore, the gas company is now tention of the court. It could hardly be estopped from attacking the validity of this overlooked, and it is altogether probable that provision." As indicating the scope and of its own accord and for that reason the purpose of said provision, reference is made court would have reversed the cause if it had by respondent to the debate in the constitu- deemed the franchise not embraced within tional convention wherein was no allusion to said provision of the Constitution. In the electricity, but the subject was treated as course of said opinion it is declared: though the privilege of furnishing gas and “The Legislature, therefore, cannot modify or water were the only consideration in the change the provisions of said section 19, article minds of the members of the convention. It chise of supplying the town of Etna with arti

11, above quoted, as to the privilege or franis claimed, furthermore, that in consonance ficial light. The Constitution intended that with a familiar rule of construction, the par- there should be no restriction upon competition ticular provision in the Constitution--and in supplying these prime pecessities as would

necessarily result if the privilege could only be of laying down pipes and conduits therein granted to the highest bidder, for such bidder and connections therewith"-is a specific lim- would necessarily secure an exclusive right to itation upon the general words, “have the priv- the exercise of the franchise; the only condiilege of using the streets,” and that “laying of the municipality to regulate the charges

tion imposed by the Constitution being the right down pipes and conduits therein" cannot rea- thereof.'» sonably be construed as authorizing the con

If the franchise to erect and maintain struction and maintenance of poles and wires, poles and wires for the purpose of furnishand to so hold is to read into the Constitu- ing electricity for lighting purposes was contion something that its language does not im- ferred by said provision of the Constitution, port. In this connection, it is further as the attempted grant of said privilege by said serted that “the provisions of the Constitu- ordinance of respondent was necessarily intion are mandatory, and the mode prescribed effective and void, and the only franchise is the measure of power," and in further sup- thereby conveyed was for the construction and port of its contention, this general principle maintenance of pole and wire lines for transof construction is invoked, “that grants of mitting electric power, and it would follow, of franchises and special privileges by the state course, that a charge could be made by the to private persons or corporations are to be city only for the latter franchise, and that construed most strongly in favor of the pub- no burden or obligation could be legally imlic, and that where the privilege claimed is posed upon appellant for the lighting frandoubtful, nothing is to be taken by mere chise other than what is permitted by said implication as against public rights."

section of the Constitution, which does not [1] The position of respondent is clearly include the payment of any percentage or stated, strongly argued, and imposingly sup- other sum, but is limited to enacting measported by respectable authority, and there is ures relating to damages to the streets and much reason for the view that it constitutes indemnity therefor. In Re Johnston, 137 Cal. a correct exposition of said constitutional 115, 69 Pac. 973, it is said: provision, but the question has been decided

“The designation of damages and indemnity otherwise by the Supreme Court, and we are for damages' as the subject upon which the bound by that decision.

municipality may prescribe regulations in regard In Pereria v. Wallace, 129 Cal. 397, 62 Pac. thority over the matter, and a prohibition from

to laying the pipes is a limitation upon its au61, the Supreme Court held that said con- prescribing regulations upon any other subject stitutional section included electric lights. connected with the exercise of the privilege. It declared unconstitutional the sale of fran- When the sovereign authority of the state, ei

ther in its Constitution or through its Legischise act of 1897 in so far as it attempted to lature, has created a right and expressed and make the right or franchise to erect poles or defined the conditions under which it may be wires for lighting purposes the subject of enjoyed, it is not within the province of a mucompetitive bidding; and it affirmed the nicipality, where such right is sought to be exjudgment of the lower court, ordering a writor terms as a condition to its exercise."

ercised or enjoyed, to impose additional burdens of mandate to issue, requiring the defendants

And it was held by this court in Town of to grant to plaintiff the privilege of erecting St. Helena v. Ewer, 26 Cal. App. 191, 146 and maintaining poles and wires along the Pac. 191, that the rule is not affected by the streets of said town for the purpose of con- fact that the applicant for a franchise grantveying electricity for power and lighting pur-ed by said section of the Constitution agrees poses to be furnished to the inhabitants to pay a certain percentage of his gross earnthereof.

ings arising from its use to the municipality It is claimed by respondent that the ques- which attempted to grant such franchise. tion before us was not raised or discussed in Therein it is said: that case, and, therefore, the decision should “The contention that the claim may be enforcnot be considered as controlling. It is true ed as the subject of private contract between

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