Fellner v. Steinbaum

DRAPEAU, J.

Plaintiffs and defendant entered into a written agreement for the sale and purchase of the Langham Apartment Hotel and furnishings in the city of Los Angeles. Defendant purchaser gave the real estate broker who arranged the transaction his check for $10,000, to apply on the purchase price.

A few days after making it, the defendant repudiated the agreement, and stopped payment on his cheek.

Two legal actions followed: (1) The instant one for damages for breach of the contract; and (2) an action against plaintiffs for the broker’s commission.

[510]

These two actions were consolidated and tried together, over the objection of defendant.

Findings and judgment were for plaintiffs in the breach of contract case, and for the broker for his commission.

Defendant purchaser appeals from the judgment against him, and contends:

1. That the evidence does not support the finding of the amount of plaintiffs' damages.

In support of this contention defendant argues in his brief:

“Since the measure of damages for the vendee’s breach of a contract to purchase real property is deemed to be the excess, if any, of the amount due under the contract over the fair market value of the property, and since it appears from the record that there was no such excess, there was prejudicial and reversible error resulting in a miscarriage of justice in the award of damages in any amount.”

2. That it was error not to credit defendant with $50,800 received by plaintiffs as a forfeit upon the breach of an agreement for the sale of the property, made after the one here under consideration.

3. That it was error to restrict the examination of plaintiff when he was testifying under Section 2055 of the Code of Civil Procedure, and under cross-examination when he was testifying in his own behalf. And that it was error to permit hearsay testimony over the objection of defendant.

4. That it was error to consolidate and try together the breach of contract and the commission cases.