The defendant presents this appeal from an order denying her motion for a new trial.
On June 22, 1911, the defendant agreed in writing with Walter J. Sherwood, plaintiff's assignor, for services to be rendered in the sale of defendant's lease of certain apartments in the city of Los Angeles. Said writing contained the following agreement: "It being understood that Walter J. Sherwood has now a prospective purchaser from whom he expects to secure a sum of fifteen hundred dollars for the lease on the above mentioned apartments, and should he succeed in consummating a deal with this purchaser shall be paid the sum of five hundred dollars." On June 23, 1911, Sherwood brought to plaintiff the prospective purchaser, one Sumner Cummings, who then and there entered into a written contract with the defendant and paid the sum of fifteen hundred dollars, of which one hundred dollars went directly to the agent and fourteen hundred dollars to the defendant. By the terms of said writing with Cummings the defendant acknowledged receipt of fifteen hundred dollars, "part payment for lease on Navarro Apartments, . . . and upon receipt of the further payment of $1833.32 on or before the 15th day of July, 1911, I agree to transfer the said lease and deliver possession to said Sumner Cummings, . . ." The evidence shows that at the meeting of Sherwood, Cummings, and Roberts, Mrs. Roberts explained that the landlord held $1833.32 of her money as security for the rent of the last two months of the term of the lease and that the purchaser would have to pay that before she could transfer the lease to him. To this Cummings consented and the time stated in the contract was allowed him *Page 732 to obtain and pay that amount. Cummings failed to make the additional payment and no transfer of the lease was ever made. The court having entered judgment in favor of plaintiff for four hundred dollars, with interest, the defendant moved for a new trial. This appeal is from the court's order denying said motion.
Appellant claims that the court erred in overruling her objection to the fourth direct interrogatory in the deposition of Sherwood, which ruling is assigned as an error of law occurring at the trial. Referring to the agency contract, the witness was asked to state what was meant by that clause in the contract reading as follows: "And should he succeed in consummating a deal with this purchaser shall be paid the sum of five hundred dollars," to which the witness answered: "My very clear understanding was that when I obtained fifteen hundred dollars for her lease, I was to receive five hundred dollars for it." The objection should have been sustained. But in view of our interpretation of the contract as hereinafter stated, the error was without prejudice.
The defendant offered in evidence the judgment-roll in a certain action between Cummings as plaintiff and Roberts as defendant, wherein Cummings sought to recover said sum of fifteen hundred dollars, and the judgment was in favor of the defendant. The objection was that the record was not binding on the plaintiff or its assignor and that it was res inter aliosacta. Appellant contends that the record in question should have been admitted as showing the inability or refusal of Cummings to perform his contract of purchase of the lease. We think that the objection was correctly sustained on the ground stated. Besides, it was later made to appear as an undisputed fact that Cummings never did receive the money which he had expected to use in making the final payment, and never did offer to make that payment. The clear inference is that he was not able to do so.
The principal contention of appellant is that the contract between Sherwood and Mrs. Roberts was more than an ordinary broker's contract because under its provisions he was not to be entitled to a commission unless he should "consummate a deal" with a purchaser. The decision of this court in Connor v.Riggins, 21 Cal.App. 756, [132 P. 848], is relied upon, where the court said: "Moreover, since the word 'consummate' *Page 733 means to bring to completion, and the court found that the oral agreement was to consummate an exchange of both the real and personal property of defendant, and that said trade or exchange of the properties between J. W. Riggins and John T. Sweatt has never been consummated, it would seem clear that plaintiff is not entitled to recover commissions." In that case the evidence was that the defendant had authorized the plaintiff's assignor to effect an exchange of property between defendant and one John T. Sweatt and that by reason of failure of title of Sweatt with respect to some of the property which he was to transfer to defendant, no exchange had ever taken place. The thing which the agent had been authorized to do never was done.
In the case at bar the agreement was that the agent Sherwood should "succeed in consummating a deal" with the proposed purchaser whereby the purchaser would pay the sum of fifteen hundred dollars for the lease. So far as this agency contract is concerned, the agent not only performed all that he could perform in such a transaction, but he actually secured the payment to the defendant of the full sum of fifteen hundred dollars, which was all that he agreed to procure for her. The fact that in dealing with the purchaser she obtained from him an agreement to pay an additional sum of money, and that because of failure to obtain such additional sum she has refused to transfer the lease, cannot defeat the agent's right to the commission, unless we are authorized to read into the agency contract an additional obligation concerning the $1833.32. This we cannot do. Looking at the agency contract alone, and by which alone the rights of the principal and agent are to be determined, we find that the agent did succeed in consummating the deal to the extent that he procured to be transferred to his principal everything that he agreed to obtain for her. Under such circumstances we hold that the agent is entitled to his commission.
The order denying plaintiff's motion for a new trial is affirmed.
James, J., and Shaw, J., concurred. *Page 734