[No. 11173.
In Bank.
July 30, 1886.]
A. M. BARLEY, Respondent, v. R. T. BUELL, Appellant.
Contract—Agreement to Pay Commission — Consideration.—Services to be rendered by a promisee in securing a loan for the promisor is a sufficient consideration to support a promise to pay a commission if the loan is obtained.
Appeal from a judgment of the Superior Court of Santa Barbara County.
The action was brought to recover ten thousand dollars from the defendant as commissions in securing a loan. The material allegations of the complaint are, that on May 15, 1884, the defendant agreed with the plaintiff in writing that if the plaintiff should sell certain land for the defendant for an amount over and above a sum then due thereon, and the surplus should be° received, the defendant would pay to the plaintiff one half of the surplus; or if the defendant secured a loan from any source with which to redeem the land, then the plaintiff should receive a commission of ten thousand dollars, as per the terms of a certain mortgage. The complaint further alleged that the mortgage was never in fact made; that the terms intended to have been inserted therein in case the same had been- made were that the mortgage should secure the payment by the defendant to the plaintiff of the sum of ten thousand dollars, of which sum three thousand dollars was to have been paid when a loan was obtained by the defendant with which to redeem the land, and that the plaintiff did not recollect the terms on which the remaining seven thousand dollars was secured to be paid. It was also alleged that the defendant did secure a loan, with which he redeemed the land. The further facts are stated in the opinion of the court, and in the opinion of Mr. Justice Thornton.
*336W. C. Stratton, for Appellant.
W. H. H. Hart, and A. R. Cotton, for Respondent.
Belcher, C. C.
This action was commenced to recover the sum of ten thousand dollars for services alleged to have been rendered by the plaintiff in procuring a loan for the defendant.
The defendant demurred to the complaint, and his demurrer being overruled, answered.
The case was tried by a jury, and a verdict returned in favor of the plaintiff for three thousand dollars, on which judgment was entered.
The appeal is from the judgment, and rests upon the judgment roll.
It is claimed for the appellant that the complaint was insufficient, and that the court erred in overruling the demurrer. The complaint was undoubtedly somewhat ambiguous, but it was not demurred to on that ground. In our opinion, it stated a cause of action for the three thousand dollars recovered, and that the alleged promise to pay that sum was based upon a sufficient consideration.
We think the judgment should be affirmed.
Foote, 0., and Searls, 0., concurred.
The Court.
For the reasons given in the foregoing opinion, the judgment is affirmed.
Thornton, J., concurring.
When this cause was before Department Two of this court for decision, I drew up an opinion affirming the judgment, and stating the reasons for such conclusion. I adhere to that opinion, and file it herein as my opinion in the cause.
The following is the opinion of Mr. Justice Thornton above referred to, rendered in' Department Two on the 30th of January, 1886:—
*337Thornton, J.
We are of opinion that under the allegations of the complaint the plaintiff could have and recover the amount of three thousand dollars, for which a verdict was rendered in his favor. There is no difficulty as to the consideration of the promise to pay. The consideration was services to be rendered in procuring a loan, and there was a promise to pay sufficiently definite averred in the complaint as regards three thousand dollars, the amount of the verdict.
As to the seven thousand dollars, the complaint was too indefinite to recover any part of it, but the verdict for three thousand dollars can be sustained under the allegations of the complaint.
Judgment affirmed.