Imbach v. Schultz

GIBSON, C. J.

Plaintiff, a real estate broker, brought this action to recover a commission which he alleges is due him under the terms of an agreement for the sale of a motel owned by defendants husband and wife. The trial court, sitting without a jury, found in favor of defendants. Plaintiff appeals, contending that the agreement was erroneously interpreted by the court on the basis of parol evidence.

The contract, a printed form with the blanks filled in by typewriting and with some changes made in ink, was entitled “Deposit Receipt” and stated that $15,000 was received from Cal Sierra Development Company “as a deposit and part payment” on the purchase of the motel for $550,000. The agreement provided that the balance of the purchase price was to be paid in a specified manner 200 days from the date of acceptance, that the amount of the deposit was to be released from escrow to defendants immediately, and that in the event Cal Sierra failed to pay the balance or to complete the purchase pursuant to the terms of the agreement, the amounts paid under it should be retained by defendants at their option as consideration for the execution of the agreement.

It was also agreed that the document expressed the entire contract of the parties, that there were no other understandings, oral or written, which in any manner altered or enlarged its terms, and that the broker would not be held responsible for the failure of the parties to abide by its terms. The following provision, subscribed by defendants, appeared on the reverse side of the document in print except for the italicized portions, which were inserted in ink, the words “on closing” being interlined: “I agree to sell the property described on the reverse side hereof on the terms and conditions therein stated

on closing

and agree to pay the agent named therein as commission / the sum of

Eighteen Thousand Five Hundred 18,500

Dollars, or one-half the deposit in ease same is forfeited by purchaser.”

Before the agreement was signed, it was carefully reviewed

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in the office of defendants’ attorney in the presence of plaintiff, defendant husband, and officers of Cal Sierra, and the attorney made the insertions in the provision quoted above. Defendants received the $15,000 referred to in the agreement. Cal Sierra did not pay the balance of the purchase price, and defendants retained the $15,000. They did not pay plaintiff any part of the money.