Gattuccio v. Kallam

[56]

DOOLING, J.

Plaintiffs appeal from a judgment awarding to defendants and cross-complainants Mona Chisholm and Clifford Kallam the sum of $10,000 held in escrow by defendant California Pacific Title Insurance Company.

In 1954 defendant and cross-complainant Chisholm, individually and as executrix of her deceased husband’s estate, owned a ranch of approximately 360 acres. In August 1954 respondent Chisholm contracted to sell and appellants contracted to buy 108 acres of this ranch for $140,000. Respondent Kallam acted as real estate agent for the seller. Ten thousand dollars was deposited by the buyers as a down payment with the title company. The agreement of sale was afterwards modified by the parties in certain particulars. The agreement and modified agreement provided that in the event the buyers failed to complete the purchase the $10,000 deposit could be retained by the seller. In such event the seller agreed to pay Kallam one-half thereof as his commission.

Appellants refused to carry out the purchase and sued to quiet title to the $10,000 deposit. Respondent Chisholm cross-complained for the full $10,000 and respondent Kallam cross-complained for $5,000 thereof. Before the trial respondent sold 355 of the 360 acres to other parties for $200,000.

Appellants contend on appeal:

1. Respondent Chisholm did not suffer damages in the sum of $10,000 from the failure of the sale to

appellants;

2. There was no evidence of the damages suffered by Kallam;

3. There was no evidence and no finding that it would be impracticable or extremely difficult to fix the actual damages;

4. The trial court erred in not allowing appellants to prove whether the new sale was for an amount in excess of the price agreed to be paid for the 108 acres by the appellants.

In support of their first point appellants rely on

Freedman

v.