Rylee v. De Fini

134 Cal.App.2d Supp. 877 (1955) A. C. RYLEE et al., Respondents,

v.

NICKOLAS DE FINI et al., Appellants.

California Court of Appeals.

June 15, 1955. Max Z. Wisot and Ted Sullivan for Appellants.

Vincent S. Dalsimer for Respondents.

BISHOP, Acting P. J.

The plaintiffs are faced with a dilemma, as they defend their judgment of $725: if the issues are restricted to the two framed as a result of a pretrial conference, the vital one of those issues must be resolved against them; and if the issues are as broad as the findings, then the evidence fails to support an essential finding.

The action is one for a broker's commission. As the facts are set forth in the second cause of action of the amended complaint, we must disregard the first cause of action, in which they are pleaded as a common count. (Orloff v. Metropolitan Trust Co. (1941), 17 Cal.2d 484, 489 [110 P.2d 396]; Neal v. Bank of America (1949), 93 Cal.App.2d 678, 681 [209 P.2d 825]; Maselli v. E. H. Appleby & Co., Inc. (1953), 117 Cal.App.2d 634, 627 [256 P.2d 618].) We have, then, an action based upon the theory that the plaintiffs, armed with an exclusive listing, had secured a buyer ready, willing and able to buy according to the terms of the listing. As indicated by the documents attached to the amended complaint, the terms authorized by the defendants were: price $14,500, to be paid as follows: $4,500 cash, seller to carry $10,000 at $100 a month, including interest at 6 per cent. The prospective buyers signed a written offer, whose terms we shall examine in a moment.

We have no report of the discussion that took place in the pretrial conference, but as the actual trial commenced "the two main issues to be reached in the present trial" were stipulated to be: first, did the plaintiffs on or about November 11 produce to the defendants "a binding contract of sale" in accordance with the terms of the exclusive listing, signed by a buyer ready, willing and able to buy defendants' property; and, second, something indefinite, about a down payment of $500 which proves to be of no concern to us. The trial court found, in one of its Findings of Fact, that the plaintiffs did procure from the buyer "a binding and enforceable written purchase contract (Exhibit 'B' of Complaint) ... and that the terms of said contract of purchase complied with the terms and conditions" of the listing agreement. Unfortunately, for the judgment, the facts are not in accord with this finding; the issue should have been resolved against the plaintiffs. [134 Cal.App.2d Supp. 879]