Coward v. Clanton

Citations

• 122 Cal. 451
• 55 P. 147
• 1898 Cal. LEXIS 609

Syllabus

<p>Partnership—Agency for Sale of Land—Payment from Conventional Profits.—A contract between the owner of a tract of land, who had subdivided it fdr sale, and a real estate broker, that the latter should sell the subdivided tracts, at prices to be fixed by the owner, and when all the land was sold, there should be paid out of the proceeds of the sales the cost of the land, with interest, and the expense of selling, and that the residue, if any, should be divided equally, does not constitute a partnership, but is an agreement to share conventional profits with the broker, as a mode of compensation for his services as an agent in selling land in which he owned no interest.</p> <p>Id.—Profit-sharing not a Test of Partnership.—Profit-sharing is not made a test of partnership by the code, which requires “the association of two or more persons for the purpose of carrying on business together,” as a distinguishing feature of a partnership.</p> <p>Id.—Agent’s Eight to an Accounting—Misnomer of Relation Immaterial.—The real estate agent, having an interest in the conventional profits realized from the sales of the land, is entitled to an accounting thereof, irrespective of any partnership relation between the parties; and the fact that the relation is wrongly averred to be that of partners is not material.</p> <p>Id.—Jurisdiction of Accounting—Equity.—If a plaintiff has a cause of action of which the superior court has jurisdiction, and it is necessary to have an accounting to determine his rights, such accounting may be had in that court, regardless of whether the facts would have given jurisdiction to a court of equity. The superior courts afford the remedies to which the facts may show the parties entitled, whether legal or equitable.</p> <p>Id.—Performance of Contract by Agent—Accepted Purchasers—Risk of Loss.—Evidence tending to show that purchasers for the entire tract, who were acceptable to and accepted by defendant, and with whom satisfactory contracts were made, we