Hillman v. Koch

SHINN, P. J.

Plaintiffs brought this action for the recovery of the sum of $2,362.05, designating their complaint as one for reformation of a contract and for damages. They were awarded the amount prayed for and the defendant appeals.

The cause of action is upon a written contract which the trial court found entitled plaintiffs to receive for their services as real estate brokers, the difference between $25,000 for which defendant’s property was sold, and $22,500 which defendant agreed to accept for the property.

The controversy hinges upon the construction to be given to the agreement of sale between defendant and his purchaser, including a notation thereon with respect to the net selling price. Plaintiffs and defendant were real estate brokers. Defendant owned the real property in question, plaintiffs having no interest therein. On October 29, 1945, plaintiffs showed the property to Antoinette Cvirka. They had no written listing of the property, or agreement to act as defendant’s brokers, although Hillman had been authorized orally by defendant to find a purchaser. Mrs. Cvirka, after inspecting the property, signed an agreement to purchase the same for $24,000, and she gave the brokers her check for $250 as a part of the purchase price, agreeing to pay $11,250 more and to take title subject to a mortgage or trust deed of record having an unpaid balance of $12,500. Both Luksis and Hillman signed the agreement as brokers. Hillman took the agreement to defendant and discussed with him the terms of the sale. Below the signatures that were already on the paper the following appeared in print:

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“I agree to sell the above described property to said buyer upon the terms and conditions above stated and agree to pay to above named broker a commission of $_, or % of buyer’s deposit, if buyer shall default, but not to exceed the full amount of said commission. ’ ’ Defendant signed the agreement below this writing. Plaintiff Hillman and defendant testified that before defendant’s signature was attached a pencil line had been drawn through the following words: “and agree to pay the above named broker a commission of.” Upon the agreement, as it was introduced in evidence, there appeared immediately above the quoted printing the following: “22,500 net $22000 net.” Immediately below the printing appeared the following: “Brokers pay escrow fee.” Hillman testified that he first wrote “$22000 net” as the net price defendant had previously given him and that at defendant’s direction he changed this to “22,500” and added “Brokers pay escrow fee” in the presence and at the request of defendant, before defendant signed the agreement. Defendant denied on the stand that the writing in question was on the agreement when he signed it, denied that he ever agreed to pay either Hillman or Luksis a commission, and asserted that it was definitely understood between Hillman and himself that the asking price of $25,000 he had quoted was his net price. After defendant signed the agreement he informed Hillman he would not sell the property for less than $25,000. Hillman reported this fact to Luksis and defendant gave the same information to Mrs. Cvirka by telephone. Escrow instructions were signed by Mrs. Cvirka by which she agreed to pay $25,000 for the property. Defendant also signed the instructions. At first they contained a direction to the escrow holder to pay a commission of $625 to the broker, Charles Luksis. This direction was inked out and the alteration initialed by defendant before he signed the instructions. Defendant also signed a separate instruction that he was to pay no commission “in this escrow.” Luksis later signed below defendant’s signature under a sentence reading: “I have read the above.” Hillman testified that when this was arranged defendant explained that Hillman was to pay Luksis.