Moody v. Osborne

PEEK, J.

This is an appeal from a judgment in favor of defendants Osborne, hereinafter referred to as the sellers, in an action instituted by plaintiffs Moody, hereinafter referred to as the purchasers, for specific performance of a deposit receipt agreement for the sale of real and personal property.

In November 1949 the sellers executed a written authorization or listing with the defendant and cross-complainant Pomeroy, hereinafter called the agent, which provided in part as follows: “In consideration of the services of C. M. Pomeroy, broker, hereinafter called the agent, I hereby list with said agent exclusively and irrevocably for a period to March 15, 1950, at 12 noon, the following described property . . .”

Although the record contains testimony by the sellers that prior to the execution of the authorization they had advised the agent that they wanted $20,000 plus assumption of a $5,700 encumbrance, exclusive of broker’s commission, the agent contradicted this testimony asserting that said encumbrance was included within the purchase price. In any event the sellers admitted signing the listing but contended that it was done without reading it since Mr. Osborne was ill at the time. On or about January 13, 1950, a California real estate association standard form deposit receipt agreement was executed by all of the parties, which document was revised on or about January 23, 1950. The purchasers at that time gave a check in the sum of $250 as deposit on account of the purchase price of $22,250, including the encumbrance then on the property. The agreement further provided that the first installment of $4,500 was due on or before February 6, 1950. The second installment of $3,500 was payable on or before June 15, 1950, and specific provisions were made covering the balance. Additionally the agreement provided in paragraph 6 “that the essence of this agreement is time and the undersigned real estate agent may. without notice, extend the time for an additional period of thirty days should said agent deem the extension advisable. ...”

The sellers testified they objected to an alleged erroneous

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statement of the purchase price in the deposit receipt as not including the farm loan and only signed the document upon the agent’s promise that the same would be corrected to show the assumption and payment of the loan in addition to the $22,250. They further testified that during the latter part of January and the early part of February, 1950, they telephoned to the agent on numerous occasions ordering him to discontinue any further activities and that they did not desire to proceed with the transaction.