Masin v. Drain

[716]

Opinion

STONE, P. J.

Bob Jones Realty, the plaintiff below and appellant herein appeals from an order of the Santa Barbara Superior Court granting respondent Sears Realty’s motion for summary judgment.

Facts

This case involves Bob Jones Realty’s attempt to obtain a portion of the commission paid to Sears Realty for the sale of a home in Santa Barbara County. The appellant contends that it is entitled to this commission because it produced a ready, willing and able purchaser prior to the date on which the property was sold.

On April 12, 1978, Ruth Drain entered into an exclusive listing contract with the respondent, Sears Realty, to sell her home. Appellant, Bob Jones Realty, worked as a cooperative broker with Sears Realty and showed the Drain property to the Masins, who were German nationals. The Masins liked the Drain home and submitted an offer on July 28, 1978, which was rejected because the terms offered had negative tax consequences for the seller.

The Drains were concerned about the tax ramifications of selling their home in 1978 and therefore required that any offer to purchase the property meet the following conditions: (1) An option to purchase would be executed, to be exercised on or after January 1, 1979; (2) option price would be one hundred thousand dollars ($100,000) cash, to be applied to purchase price; (3) escrow would not open prior to January 1, 1979; and (4) all documents would be prepared by attorneys for Mrs. Drain and approved by Sears Realty and Mrs. Drain’s tax attorneys.

On August 24, 1978, the Drains met with David Boggs who offered to purchase the property and agreed to the terms and conditions set forth above. The Drains and Boggs entered into an oral option contract for the sale of their property and agreed to reduce the contract to writing on August 29, 1978. On August 26, 1978, agents for Bob Jones Realty delivered a written offer to purchase the Drain property to Sears Realty. This offer was rejected because the Drains had already accepted the Boggs’ offer. A virtually identical offer was personally delivered to Vince Drain on August 28, 1978. This offer was also rejected.