McAlinden v. Nelson

California Court of Appeal Nov 5, 1953 No. Civ. 19778Published

Before: Drapeau

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Holding. A real estate broker is entitled to a commission when they procure a purchaser ready, willing, and able to buy, even if the vendor's spouse refuses to join in the sale, provided the listing agreement did not condition the commission on such consent.

Issues

Whether the refusal of a spouse to join in a real estate sale constitutes a valid defense against a broker's claim for commission.
Whether a vendor is estopped from denying a purchaser's readiness, willingness, and ability after accepting the purchaser's offer.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the refusal of cotenants, or the wife of the vendor, to join in the instruments necessary to complete the sale is not sufficient reason for failure to consummate the transaction, and does not deprive the broker of his right to compensation”

“the agreement contained no condition that it was subject to approval of appellant’s wife. As a result, under the authorities hereinabove cited, appellant is bound to pay the broker’s commission.”

“where “an owner of property accepts the offer made by a person produced by the broker employed to make the sale, he thereby admits the readiness, willingness and ability of the purchaser to consummate the sale.”

DRAPEAU, J.

The first amended complaint herein alleges that by written agreement of May 11, 1950, “defendants” employed plaintiff to sell a piece of realty owned by them at a specified price of $25,500, and that they agreed to pay him a commission of 5 per cent of the selling price. On July 8, 1950, the listing agreement was extended for an additional 90 days. The extension was signed by plaintiff and defendant Simeon B. Nelson.

On July 16, 1950, plaintiff procured purchasers, who agreed to buy the listed property for $18,600. On that day, defendant signed a deposit receipt in which he agreed to complete the sale of the property for the offered price and to pay a commission of $930 to plaintiff.

The said complaint further alleges that the buyers were able, ready and willing to complete the purchase; that they and plaintiff have performed their part of the contract, but that defendants have not paid the commission of $930 which sum is now due and owing to plaintiff.

The answer denies (1) that the purchasers “were willing or ready or able to purchase this answering defendant’s interest in his property”; (2) performance of the conditions of the contract; and (3) that the sum of $930 is due and owing.

Defendant admits (1) the execution of the original agreement of May 11, 1950, by him and his wife, Rosalie; (2) the extension thereof by him; (3) the execution of the deposit receipt on July 16, 1950, by him alone; and (4) the nonpayment of the $930.

The answer affirmatively alleges that “said deposit receipt was never signed by said Rosalie Nelson . . . that plaintiff was aware of the fact and well knew that the property referred to in said deposit receipt was jointly owned by this answering defendant and his said wife, Rosalie Nelson, and that a sale of the entire property could not be made unless the said wife Rosalie Nelson joined in the sale, and further alleges that the said wife Rosalie Nelson refused to consent to the sale of said real property at the reduced price. ...”

[138]

The trial court granted plaintiff’s motion for judgment on the pleadings, and from the ensuing judgment defendant appeals.

McAlinden v. Nelson

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DRAPEAU, J.

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