Williams v. Krumsiek

MUSSELL, J.

This is an action for the recovery of damages alleged to have been suffered by plaintiffs as a result of defendant’s refusal to perform a contract for the exchange of real properties. It is alleged in the amended complaint that on or about July 9, 1948, defendant Irene Krumsiek entered into an agreement in writing with O. A. and Lola B. Sanders for the exchange of real properties in Kern and Los Angeles Counties; that the exchange agreement was secured through the efforts of plaintiffs as real estate brokers, who fully performed their part of the agreement; that the exchange agreement provided, among other things, that the defendant should pay to plaintiffs the sum of $1,500, and that said O. A. and Lola B. Sanders should pay plaintiffs a like sum as commissions for securing the sale and exchange of the said properties of the respective parties; that on or about July 13, 1948, an independent agreement in writing was executed by plaintiffs and Sanders and his wife wherein it was provided that Mr. and Mrs. Sanders would pay their share of the commission from the first crops of 1949 from the Kern County ranch property being acquired by them and that said payment, if made from proceeds of crops before June 1, 1949, would be from crops on said property; that defendant refused to perform the exchange agreement; that as a direct and proximate result of her failure of performance, Sanders and his wife were never placed in possession of the Kern County property and were unable to produce crops therefrom and that they, therefore, did not become obligated to pay their share of the commission, to the damage of plaintiffs in the sum of $1,500. The trial court sustained a demurrer to the complaint without leave to amend and entered judgment for defendant. Plaintiffs appealed and the judgment was reversed by this court in

Williams

v.

Krumsiek,

109 Cal.App.2d 456 [241 P.2d 40]. Defendant then filed her answer to the complaint, denying generally the allegations thereof and setting up as an affirmative de

[413]

fense that plaintiffs had recovered a judgment against the defendant on the same cause of action in a former action, numbered 49950, filed in the Superior Court of Kern County, and that said judgment had been paid.