Holway v. Malloy

SHINN, J.

Plaintiff had judgment for the specific performance of two separate writings, which were construed by the court as agreements of defendant John Malloy to sell and convey to plaintiff two apartment houses, with the furniture contained therein. The court found that the furniture was community property, the real estate the separate property of the husband. John Malloy and Dorothy G. Malloy, his wife, appeal. John Malloy will be referred to as the defendant.

On April 7,1943, defendant listed with one Alfred J. Dixon, a realtor, upon separate forms, the apartment houses in ques

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tion. The listings described the properties by street number, stated the price of each as “net 30,000”, the size of the lot, encumbrance of $12,000 on one property, $13,000 on the other, at 5 per cent interest, and recited, “the above listing is to include the furniture & Carpeting as per inwtory schedule.” One of the listings read further as follows: “In consideration of services to be rendered, I hereby give to Alfred J. Dixon of 2140 Hillhurst Ave the Exclusive right to sell my property as listed above, for a period of 30 days from the date. If a sale or exchange is effected by myself, during their agency for the above described property, I agree to pay them 5%. Five per cent of the selling price, as commission for their services, and to furnish satisfactory title to said property Owner J. Malloy.” The other listing contained the same provisions, although not in identical language, the word “ourselves” being used instead of the word “myself” in the second listing. These listings were signed by defendant but not by Dorothy Gr. Malloy.

The property was shown to plaintiff, Holway, who on May 2, 1943, gave the broker two checks for $500 each, payable to the broker, whereupon two writings were prepared and signed by the broker and plaintiff, reading as follows: “Deposit Receipt Los Angeles, California May 2/43 Received from A T C Holway 19061 Wells Dr Tarzana Calif, the sum of Five Hundred Dollars ($500.00) Dollars as a deposit on account of purchase price of following described property, situate in the City and County of Los Angeles State of Calif, to-wit: Lot 55 Tract 3907, Map book 42 pages 38/39 in the Los Angeles County Records. Also known as 1915 No Vermont subject to conditions, restrictions, reservations, and rights-of-way now of record. Purchase price to be $30,000.00. Plus 5% Commission Dollars. Balance of purchase price to be paid as follows: