Marks v. Rowley

DRAPEAU, J.

On September 25,1948, plaintiff, a licensed real estate agent, telephoned defendant for permission to list for sale a motel owned by him. Defendant agreed to give plaintiff an open listing. Thereupon, plaintiff mailed to him the Los Angeles Realty Board’s official printed form of “exclusive listing” for sale of realty. Before doing so, plaintiff had altered this form by adding at the top the words ‘ ‘ Open

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Listing” and by striking the word “exclusive” from the body of the instrument where it appeared twice. This printed form so altered was accompanied by a note from plaintiff, to wit: “Dear Mr. Brawley: Please sign open listing, both copies enclosed. Return original. I will hold price firm. . . . Please keep me advised of any developments, and I will do the same to you. ’ ’

Upon receipt, defendant signed the listing, but before returning it to plaintiff he struck out the phrase having reference to a termite clearance.

Those portions of the printed form which appointed plaintiff the irrevocable agent of defendant from September 25th to November 30th, 1948, and agreed to pay him, a 5 per cent commission “If a purchaser ready, willing and able to purchase . . . said property is procured by said agents or by anyone else including myself,” were left unchanged.

During the period covered by the listing, the motel was sold by another agent to whom defendant paid a commission.

By the instant action, plaintiff sought to recover a commission of 5 per cent on the sale, based on the terms of the listing agreement.

The trial court found that defendant was to pay plaintiff a commission only in the event plaintiff procured a buyer ready, willing and able to buy the motel prior to November 30th, and prior to its being otherwise sold; that it was not understood or agreed that “if a purchaser was procured by plaintiff or anyone else, including the defendant” during the terms of the agency, plaintiff was to receive a commission; that the buyer of the property was not obtained in any way through the efforts of plaintiff, and that he did not at any time obtain a buyer ready, willing and able to purchase the motel.