Duin v. Security-First National Bank

SWAIN, J.

This is an appeal by the defendant, the executor of the estate of Thomas Andrew Hunt, deceased, from a judgment in favor of the plaintiff, a real estate broker, for a

*Supp. 905

commission. On November 28, 1951, Hunt signed a written listing in which he (1) employed the plaintiff “to sell” certain real property and (2) agreed to pay her a 5 per cent commission. On February 19, 1952, while the listing was still in force, plaintiff obtained from one Jacob Borstein a $500 deposit on the purchase price of the property. She signed a receipt for the money which stated the terms on which Hunt had listed the property. Borstein wrote on an executed copy of the receipt “accepted by Jacob Borstein.” On February 20, 1952, the plaintiff mailed a letter to Hunt at his home, advising him that she had secured a purchaser who had made a $500 deposit. This was the only communication, written or oral, between the two regarding the offer which plaintiff obtained. Neither in the letter nor by any other means did she give Hunt the name of the buyer, put him in possession of the written offer or bring the two together. Hunt never received the letter because, on February 19, 1952, he was taken to the hospital where he died February 21, 1952. It is undisputed that Hunt’s death revoked plaintiff’s authority. (8 Am. Jur. 1010.)

The plaintiff claims that she is entitled to her commission because she produced a purchaser who was ready, willing and able to buy on Hunt’s terms. We do not agree with her. She did not produce to Hunt a purchaser because she never put Hunt in a position where he could have made a contract of sale with Borstein had he so desired.

The listing signed by Hunt did nothing more than empower the plaintiff to find a purchaser even though it stated that the broker was authorized “to sell” the property.

(Holway

v.

Malloy

(1945), 70 Cal.App.2d 317, 319 [160 P.2d 893]; 9 Cal.Jur.2d 195.) The memorandum signed by the prospective purchaser was, therefore, nothing but an offer. This offer was never communicated to Hunt. The letter which did not reach him did not serve to apprise him of the offer.

Volume 2, Mechem on Agency, page 2003, section 2431, says: “If the broker has obtained from a proper person and

delivered to Ms