Opinion
Department Two
Appeal from a judgment of the Superior Court of Fresno County.
COUNSEL:
Meux & Edwards, for Appellant.
E. C. Winchell, and Wharton & Short, for Respondent.
JUDGES: Thornton, J. McFarland, J., and Sharpstein, J., concurred.
OPINION
THORNTON, Judge
[23 P. 196] This is an action by plaintiff to recover commissions for an alleged sale of land. He never produced a purchaser ready and willing to buy on the terms of his employer, the defendant. He cannot, therefore, recover. (Dolan v. Scanlan , 57 Cal. 261; Moses v. Bierling , 31 N.Y. 462; Sibbald v. Bethlehem Iron Co ., 83 N.Y. 378; 22 Am. Rep. 441.)
Here the plaintiff had the exclusive right to sell for a term ending January 1, 1889, and the defendant, during this period, himself effected a sale. Though the plaintiff had the right to sell, to the exclusion of his employer, still he cannot recover his commissions unless he has produced a purchaser ready and willing to buy as above stated. This is expressly held, and correctly held, in Moses v. Bierling, supra, which is a case similar to this.
The plaintiff argues this case as if it was a suit to recover damages for defendant's breach of contract. The complaint does not set forth any such action, but one to recover the compensation agreed to be paid on a sale.
There is no error.
Judgment affirmed.