Delbon v. Brazil

VAN DYKE, P. J.

This is an appeal from a judgment in the amount of $3,200 in an action to recover a real estate broker’s commission.

The action was based upon a brokerage contract which gave to respondent, a licensed real estate broker, an exclusive right to sell real property during the period from June 16 to July 16, 1952. That contract contained the following provisions : The appellant as owner of the property involved agreed to pay respondent “the agreed commission upon the actual sales price if the above described property is sold or agreed to be sold to any person prior to the termination of such right, or if such property is sold or agreed to be sold within 30 days thereafter to any person with whom said Broker or his agent negotiated for its sale, prior to the expiration date hereof.” Respondent’s action was based upon the second alternative.

There was substantial evidence of the following: A licensed real estate salesman employed by respondent held an interview with Horace C. Spencer, who later purchased the property, in the respondent’s office. This occurred July 11, 1952. During that conference and for an hour or more the salesman discussed appellant’s property with Spencer. In part he told Spencer that the property would be good clover ground,

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easily leveled, gave him the approximate slope of the lands, and stated the listing price of $225 per acre. During the interview he offered to show the property to Spencer, but the latter replied that he preferred to go alone, whereupon the salesman drew a diagram of the location of the property for Spencer so that he would be able to find it. Three days later the salesman telephoned Spencer who said he had looked at the property and wanted more information as to the legal description, the amount of water available for use on the property, and the amount of taxes and assessments thereon. The next day the salesman journeyed to Merced and obtained this information. He telephoned the information to Spencer and at that time gave him the name and address of appellant as owner. Spencer replied that he was then looking at another property and would let the salesman know when he decided one way or another. Within a week the salesman telephoned Spencer again and was informed that Spencer was still waiting to decide between appellant’s property and another. Spencer was interested at the time in the purchase of a large piece of land, had known the property was for sale, and had seen it before his visit to respondent’s office, but not as a prospective purchaser. About a week before Spencer purchased the property he went to the office of a second real estate broker, through whom he purchased the property after July 16, that is, after the expiration of respondent’s exclusive agency but within 30 days thereafter. He purchased it at a lower price than the price quoted by respondent’s salesman. It appears that after the expiration of respondent’s listing the appellant had listed the property with the second broker. Not all of the above testimony was uncontradicted, but under the familiar rule we must, in support of the trial court’s judgment, assume the truth thereof.