Conrad v. Thompson

California Court of Appeal Nov 17, 1955 No. Civ. 5072Published

Before: Barnard

AI Brief

AI-generated · verify before citing

Holding. The court held that the provision granting the plaintiff an exclusive listing was a severable part of the purchase contract, and that the defendants were entitled to terminate the agency due to the plaintiff's failure of consideration regarding a promised investment.

Issues

Whether the provision for an exclusive real estate listing was severable from the purchase and sale agreement.
Whether the defendants could unilaterally terminate the listing agreement without the seller's participation.
Whether the plaintiff's failure to provide promised consideration justified the termination of the agency.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The only reasonable interpretation is that this provision was intended as a substitute for, and to avoid the necessity of, any other writing which would otherwise be required for the collection of a broker’s commission.”

“It sufficiently appears here that this portion of the contract was severable from the remainder.”

“The court’s findings of a failure of consideration, which were fully supported by the evidence, furnish a further reason why the appellant was not entitled to recover.”

[74]

BARNARD, P. J.

The defendants purchased 10 acres of land from one Gilmore under a contract dated February 1, 1952. The plaintiff acted as broker and was paid a commission by Gilmore. This contract recited that Thompson desired to purchase this property for the purpose of subdividing and erecting dwellings thereon. It provided for a price of $18,000, with a down payment of $5,000, and an escrow; that the seller should receive $300 from the sale of each lot to apply on the purchase price; and that if any balance remained after two years it should be payable in monthly payments of $50, and secured by a trust deed on the remaining lots. This agreement also contained a paragraph providing that Fred Conrad “shall at all times have the exclusive handling of said property in regard to the sale of all lots and to include all improvements placed thereon”; that “the provision in this paragraph shall be in lieu of any other agreement with the said Fred Conrad”; and that “Charles P. Thompson agrees to pay Fred Conrad a commission of $200 per house and lot as commission for sale of each house and lot, and no more.”

On March 3, 1952, the defendants served written notice on the plaintiff that his agency for the handling or sale of this property was thereby terminated. The defendants, through a title company, took the necessary proceedings before the Riverside Planning Commission and the State Real Estate Commissioner to subdivide the property and to permit sales of lots therein to be made. The final report of the Real Estate Commissioner was dated May 19, 1952. Thereafter, the defendants proceeded to build homes and sell the lots in this subdivision.

The plaintiff later brought this action, relying on the paragraph above quoted as constituting a contract for his benefit. An amended complaint, filed on January 9, 1953, alleged that this land had been subdivided and 50 houses and lots had been sold; that the plaintiff was at all times ready, willing and able to perform his duty with respect to an exclusive handling of the sale of houses and lots as contemplated in the contract; that the defendants had wrongfully refused to permit him to sell said houses and lots, and wrongfully prevented him from performance; and that he had been damaged in the sum of $10,000. The answer denied the material allegations of the complaint, and alleged as a further defense that in consideration of being thus named in this contract as exclusive agent for the sale of these lots, the

Conrad v. Thompson

AI Brief

BARNARD, P. J.

More from California Court of Appeal

Related research

AI Brief