I dissent.
I agree with Mr. Justice McComb that an agreement to obtain an option to buy real property does not come within an agreement employing an agent “to purchase or sell real estate” within the statute of frauds inasmuch as it is nothing more than employing an agent to obtain personal property— a chose in action. (Civ. Code, § 1624, subd. 5.) In addition to the discussion in the able and learned opinion prepared by Mr. Justice Fourt for the District Court of Appeal (Cal.App.) 293 P.2d 800 adopted by Mr. Justice McComb, it should be mentioned that real property is defined as lands, tenements and hereditaments (Code Civ. Proc., § 17, subd. 2) and personal property includes goods, chattels and “things in action” (id., § 17, subd. 3). Hence an option being a chose in action is personal, not real, property. Real estate and real property are synonymous (City of Santa Barbara v. Maher, 25 Cal.App.2d 325 [77 P.2d 306]) and that is true with reference to the statute of frauds (Civ. Code, § 1624, subd. 5), *74here involved. (Dabney v. Edwards, 5 Cal.2d 1 [53 P.2d 962, 103 A.L.R. 822].) An agent’s charge for procuring a lease is not subject to the statute of frauds. (Dabney v. Edwards, supra, 5 Cal.2d 1.) There is no more reason why, therefore, obtaining an option to buy, should be read into the statute.
I also agree with Mr. Justice Schauer in his dissent, that, assuming a writing is necessary the ease should be tried to see if there is a sufficient memorandum here. The memorandum pleaded appears to be sufficient.
I further believe, however, that on the third ground urged by plaintiff, estoppel, the defendant could not rely on the statute of frauds. In Monarco v. Lo Greco, 35 Cal.2d 621 [220 P.2d 737], this court clarified the law in relation to estoppel to plead the statute of frauds. This court stated two fundamental principles: (1) Estoppel to rely on the statute of frauds may exist where injury would result when the party has changed his position in reliance on the oral contract, or (2) unjust enrichment would result to the other person if he were permitted to assert the statute successfully. The question then is only, was the injury which resulted from plaintiff’s change of position, and the resulting unjust enrichment of defendant, sufficient. In the Monarco case the supplying of services to the parents for many years in reliance on the oral contract was held enough under both principles. In the instant case plaintiff had rendered valuable services to defendant to obtain an option on the land in reliance on the oral contract and hence was injured. Defendant was unjustly enriched by the acceptance of those services (he obtained the option) for which he refused to pay. Suppose plaintiff had devoted all of his time to the project for five years, would there be any doubt that there was both injury and unjust enrichment? In Ruinello v. Murray, 36 Cal.2d 687 [227 P.2d 251], this court held there was no injury because the employee was paid for his services but clearly intimated he could recover the reasonable value thereof to the extent it was above what he was actually paid. There can be no doubt, therefore, that plaintiff here should be entitled to recover the reasonable value of his services even though the contract was oral. Some of the cases cited in the majority opinion for the proposition that there cannot be estoppel as to real estate brokers’ contracts were before the decision in the Monarco case (see Hicks v. Post, 154 Cal. 22 [96 P. 878] ; Colburn v. Sessin, *7594 Cal.App.2d 4 [209 P.2d 989]) and the others do not mention or discuss it. (See Augustine v. Trucco, 124 Cal.App.2d 229 [268 P.2d 780] ; Hooper v. Mayfield, 114 Cal.App.2d 802 [251 P.2d 330].)
I would reverse the judgment.
Appellant’s petition for a rehearing was denied October 31, 1956. Carter, J., Schauer, J., and McComb, J., were of the opinion that the petition should be granted.