Kline v. Johnson

121 Cal.App.2d Supp. 851 (1953) MARIAN FRANCES KLINE, Respondent,

v.

CLIFFORD E. JOHNSON et al., Appellants.

California Court of Appeals.

Oct. 22, 1953. Renwick Thompson and Eugene A. Horton for Appellants.

Ward & Ward and M. Luther Ward, Jr., for Respondent.

BURCH, J.

Plaintiff Marian Frances Kline brings this action against defendants, Clifford E. Johnson and Ethel M. Johnson, for a real estate commission. Judgment was entered for plaintiff by the court below and defendants appeal.

[1a] The court found that on September 2, 1952, defendant Mrs. Johnson entered into an open listing agreement with plaintiff for the sale of Lots 11 and 12 in Block 4 of West Teralta Addition in the City of San Diego, State of California; that on September 6, 1952, plaintiff produced as purchasers of said real property Reagan Ratliff and Ethel V. Ratliff, who were then and there ready, willing and able to purchase for the consideration of $16,000 the real property described in the listing agreement; that the Ratliffs executed an offer to purchase said real property on September 6th; that the defendants accepted said offer on the same date; that on September 8th the purchasers refused to complete the purchase; that said sale has not been consummated and said purchasers have not paid any sums upon said purchase price nor opened any escrow in connection with said purchase.

Though the court also found that in "... said listing agreement defendant (Mrs. Johnson) agreed to pay plaintiff a commission of five per cent (5%) of the sale price obtained in consideration of her services as agent," this term was limited by a substituted agreement, as will appear. It is undisputed and set forth in the settled statements as follows:

Plaintiff produced a standard "Offer to Purchase Real Estate and Receipt for Deposit" form, completed the form in plaintiff's own handwriting, and secured the signatures of the Ratliffs upon said document. Plaintiff then signed the document as agent opposite the printed words, as follows:

"Receipt of above mentioned deposit is herewith acknowledged."

Then plaintiff secured the signatures of both defendants upon said document under the following words: