Spade v. Cossett

WOOD (Fred B.), J.

Plaintiff appeals from a judgment for the defendant in an action to recover a real estate broker’s commission for obtaining a purchaser of certain real property owned by defendant and her husband in joint tenancy.

The trial court found (1) that respondent signed a written deposit receipt agreement to sell the property and to pay appellant a commission of 5 per cent of the sale price, but delivered the document to appellant, the agent of respondent, upon the express agreement that the deposit receipt agreement (a) was not to be delivered to the purchaser or at all unless respondent’s husband agreed to the sale of the property and (b) was to terminate if her huband would not agree to sell the property for the price and upon the terms stated in the deposit receipt; and (2) that her husband did not at any time agree to sell.

The evidence amply supports the finding. A Mrs. George, in the employ of appellant, called on the respondent at the latter’s home on Saturday, July 9, 1949, and presented copies of a deposit receipt which already bore the signature of appellant and Ralph W. Scott, the prospective purchaser, and recited that Scott had made a $3,000 deposit. Mrs. George had already given Scott a copy of the receipt. Respondent’s daughter, Patricia, was present at this interview and testified that Mrs. George told respondent the Seotts wanted to buy the house, were also interested in another house, and respondent had better hurry up and sign; that respondent asked, “Well, if I do sign it, will it hold good if my husband refused to sign it?”; and Mrs. George said “No,” that she would

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not deliver the receipt until respondent’s husband agreed to sign it, and that there would be no deal if he did not sign it. Later that day, he disapproved the deal, and respondent, according to her testimony, phoned Mrs. George, “My husband doesn’t want to sign it, but I think he will.” Respondent further testified: the following Monday I told Mrs. George that Mr. Gossett would not sign and she said I had phoned and it was off and she would see what Mr. Scott said; I called her on Tuesday and then on Wednesday she said she had seen Mr. Scott and delivered the deposit receipt to him and that he said so far as he was concerned it was a deal. Asked if she did not recall that “if the sale didn’t go through you were to pay the real estate broker one half of the deposit?” respondent replied, “No, I didn’t understand that at all.”