Snell v. Wickersham

WOOD (Parker), J.

Action for commission for services as real estate broker. Plaintiff appeals from judgment in favor of defendant.

On December 12, 1951, defendant signed and delivered to plaintiff a writing whereby defendant, in consideration of the services of plaintiff as agent of defendant, granted to plaintiff an “Open Listing right,” for 90 days thereafter, to sell defendant’s real property consisting of approximately 30 acres for $2,500 per acre on terms of “At Least % cash.” The writing also provided: “I hereby agree to pay said agent as commission 5 per cent of the selling price that is accepted by me.”

It is not disputed that plaintiff obtained a purchaser for said property, namely, Sponseller and Sons, a partnership,

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which entered into a written escrow agreement on January 2, 1952, with defendant for the purchase of the property. The escrow instructions stated that the total consideration to be paid to plaintiff was $72,500; that the amount of cash to be paid to plaintiff through escrow was $25,000; that no cash was paid outside the escrow; that the buyers would give a promissory note for the balance of the purchase price, $47,500, which note would be secured by a trust deed on the land; that certain payments on the balance would be made each time a lot (in a proposed subdivision of land) was sold and released from the provisions of the trust deed. It thus appears that the terms of the escrow agreement were different from the terms stated in the listing, in that, the price was approximately $2,417 per acre instead of $2,500 per acre, and the cash payment was $25,000 instead of $37,500 (one-half the price of 30 acres at $2,500 an acre, as stated in the listing). Plaintiff did not obtain a purchaser upon the terms stated in the listing, but the defendant did execute escrow instructions which provided for a sale of the property to said purchaser upon other terms and conditions. A provision in the escrow instructions of defendant was: “Commission of $3625.00 is to paid to Albert L. Snell, Jr., Broker . . . [license number, telephone number, and address of broker] and this is to be paid as funds from this sale are received by the Seller. Prom the $25,000.00 initial payment hereunder you will pay to said broker the sum of $1250.00.” It was stipulated at the trial that there was an oral agreement between plaintiff and defendant that the remainder of the commission, after the payment of $1,250 from the initial $25,000 cash payment, was to be paid from certain payments (of approximately $490 each) which defendant was to receive as a part of the balance of the purchase price when a lot in the proposed new subdivision was sold; and that the portion of each such payment to be paid to plaintiff was “the same percentage that $1250 bore to the $25,000.00.”