Filante v. Kikendall

WOOD (Parker), J.

Action to recover $3,700 allegedly due as real estate broker’s commission. Judgment was in favor of plaintiff, and defendant appeals therefrom.

On March 4, 1952, defendant and his wife owned a one-half interest, as joint tenants, in a motel in Monterey Park.Their son, Ralph E. Kikendall, Jr. (hereinafter referred to as Ralph), and his wife owned a one-half interest therein, as joint tenants. On said date defendant signed a "listing” which provided, in part, that plaintiff had the right, for the period from March 4, 1952, to May 4, 1952, to sell said motel for $110,000; that the down payment was to be

$35,000;

and that if a sale "is effected” by plaintiff during the agency, defendant agreed to pay plaintiff as commission 5 per cent on

[697]

$50,000 of the selling price and 2 per cent on the balance of the selling price. At the bottom of said listing plaintiff wrote the following words: “No sale after May 1, 1952.” Plaintiff testified that he wrote those words at the request of defendant who told him, after he had given him the listing, that he wanted the motel sold by the first of May, and that if it was not sold by that time he was going to keep it.

About April 1, 1952, defendant went to Illinois and did not return until April 26, 1952. Plaintiff advertised the property for sale. Jacob Tenenbaum (erroneously referred to as Tannebaum) read the advertisement, went to plaintiff’s office and talked with an associate of plaintiff, Homer Smith (who testified that he was a real estate broker during the year 1952). According to the testimony of Tenenbaum and plaintiff, Tenenbaum went to plaintiff’s office about the middle of April. According to the testimony of Smith, Tenenbaum went to plaintiff’s office on April 23. On the day Tenenbaum went to plaintiff’s office, Smith took Mr. and Mrs. Tenenbaum to the motel, and a caretaker at the motel “showed” them around. Tenenbaum told the caretaker that he wanted to see the books. The caretaker telephoned Ralph who said that he would show the books to Tenenbaum. That afternoon Ralph met Tenenbaum in the motel office and showed the books to him. Tenenbaum testified that he “offered” Ralph $100,000 for the motel and everything that was in it; that Ralph said he could not make the deal without defendant’s consent; that Ralph in his (Tenenbaum’s) presence, telephoned defendant (who was in Illinois), and then told Tenenbaum that it was “O.K.” Defendant testified that said telephone conversation was on April 17, 1952; that in the conversation he and Ralph “agreed” that Tenenbaum could have the motel for $100,000 if defendant could keep “certain things”; and that he told Ralph to convey that message to Tenenbaum. The following day Ralph called Smith and told him that Tenenbaum had offered $100,000 for the motel. While returning from the motel to his home, Tenenbaum saw that a freeway was under construction in the vicinity of the motel. The next day he went to plaintiff’s office and told Smith that he was “scared of that freeway,” and didn’t think he would buy the motel. About two days later Tenenbaum went to Detroit. About 18 days later he returned to California. He apparently did not tell Smith or defendant that he was going away, but he gave Smith the address of the apartment house in Los Angeles where he resided.