Quistgard v. Derby

PEEK, J.

This is an appeal by plaintiff from a judgment in favor of defendants in an action instituted by plaintiff to recover a real estate broker’s commission alleged to be due him from defendants by reason of their failure to perform a written agreement between the parties.

[272]

Although, three contentions are made they are not separately stated bnt are treated as one: that the evidence is insufficient to support the findings. From our examination of the record, viewing it as we must in the light most favorable to respondents, we find nothing to warrant our interference with the judgment as entered by the trial court.

The allegations of the complaint are that plaintiff entered into a written agreement with defendants; that by the terms thereof defendants agreed to pay him a commission for effecting a sale or exchange of certain property owned by defendants in Sonoma County; that pursuant to said agreement he procured a purchaser of defendants’ property; that thereafter an exchange agreement was entered into between defendants and Dave Moskowite and his wife, Laura, the prospective purchasers; that the said Moskowites complied with all of the terms of said agreement and were ready and willing to complete the transaction but that defendants without cause refused to perform said agreement, thereby depriving him of the commission due from said defendants in the sum of $1,000 and the commission of $500 from said Moskowites.

By their answer defendants in effect admitted the material allegations of the complaint relative to the execution of the agreement but denied that there was any money owing to plaintiff for the reasons set forth in their affirmative defense, which were (1) that plaintiff misrepresented the value of the property to be exchanged for theirs, and (2) that it was understood by all parties that an exchange of defendants’ property could not be effected unless first approved by defendant S. B. Derby’s father, H. S. Gutermute, beneficiary of the second deed of trust on the Derby property; that plaintiff represented to defendants that Gutermute .had stated that the exchange was a profitable transaction for defendants ; that Gutermute and his wife had agreed in writing to the transfer of his deed of trust; that said statements were false and untrue and made for the purpose of inducing respondents to sign said exchange agreement; that defendants would not otherwise have signed and in fact did sign the same only because of said fraudulent representations of plaintiff; that upon discovering the fraud they gave notice to plaintiff and to the owners of the other property that the exchange could not be effected because of the refusal by Gutermute to transfer his deed of trust.