Rucker v. Hall

Citations

• 105 Cal. 425
• 38 P. 962
• 1895 Cal. LEXIS 675

Syllabus

<p>Heal Estate Brokers—Contract for Commissions—Alternatives— Pleading—Election of Counts — Single Subject of Action.— Where real estate brokers made a written contract for the sale of lands through their agency, for a specified commission, in which the owner of the land agreed that if he found a purchaser independent of the real estate agents, or withdrew the property from the sale, he was to pay one-half of the specified commission, in an action upon the contract, the complaint in which sets up two causes of action, one based upon an alleged sale of the property by the owner, entitling plaintiff's to one-half of the commission, and the second based upon the first clause of the contract alleging that plaintiffs being ignorant of the sale by the owner, thereafter found a purchaser and notified the owner thereof, who refused to convey to such purchaser, both causes of action are based upon the same contract, and the facts might properly have been set forth in a single count, the subject of the action being the recovery of the commissions under a single contract for the payment thereof at a certain rate under one set of circumstances, and a different rate under different circumstances, and it is error for the court to require the plaintiffs to elect between the counts, and to rely upon one count only.</p> <p>Id.—Averment op Pacts Within Knowledge op Dependant—Counts.— Where the facts are peculiarly within the knowledge of the defendant, and cannot be certainly known to the plaintiffs, as to the precise nature and limits of defendant’s liability, before the evidence is all in, the plaintiff may state his cause of action variously in different counts of the complaint, and should not be compelled to elect upon which count he will proceed.</p> <p>Id.—Sale by Owner op Property—Lease—Option to Purchase. — Where the owner of the property, during the time limited by the contract of agency, executed a lease for a term of five years, with the sole and exclusive privilege to the