Williams v. Krumsiek

MUSSELL, J.

Plaintiffs appeal from a judgment entered on motion of defendant after a demurrer to plaintiffs’ first amended complaint was sustained without leave to amend. It was alleged in said complaint that on or about July 9, 1948, defendant, Irene Krumsiek, entered into an agreement in writing with O. A. and Lola B. Sanders for the exchange of real properties in Kern and Los Angeles Counties; that the exchange agreement was secured through the efforts of plaintiffs as real estate brokers, who fully performed their part of the agreement; that the exchange agreement provided, among other things, for the payment of $3,000 to plaintiffs as commission for the sale and exchange of the properties, $1,500 to be paid to plaintiffs by defendant Krumsiek and a like amount by Sanders and his wife; that on or about July 13, 1948, an independent agreement in writing was executed by plaintiffs and Sanders and his wife wherein it was provided that the Sanderses would pay their share of the commission from the first crops of 1949 and/or before June 1, 1949, and that said payment, if made from proceeds of crops before June 1, 1949, would be from crops grown on -the Kern County property; that defendant refused to perform the exchange agreement; that as a direct and proximate result of her failure to do so, Sanders and his wife were never placed in possession of the Kern County property and were unable to produce crops therefrom and, therefore, did not become obligated to pay their share of the commission, to the damage of plaintiffs in the sum of $1,500.

The complaint herein apparently is drawn on the theory that in addition to the sum of $1,500 recoverable from defendant Krumsiek on her agreement to pay that amount as commission, plaintiffs were entitled to recover a like amount as damages for the loss of commission which would be payable by Mr. and Mrs. Sanders had the agreement of exchange been performed by defendant Krumsiek. This theory is supported by the decisions in

Coffman

v.

Crookshank,

140 Cal.

[458]

App. 192 [34 P.2d 1067], and

Traxler