Chapman v. Gilmore

BURKE, P. J.

Plantiff, a licensed real estate broker, brought action against defendants PosalsMs, “buyers,” and defendant Gilmore, “seller,” for damages arising out of the failure of the parties to complete a sale of real property. Both buyers and seller demurred. Buyers’ demurrer was overruled and is not an issue on appeal. Seller’s general demurrer was sustained as to all counts. Plaintiff filed his amended complaint to which a general demurrer was sustained without leave to amend. Judgment was entered thereon from which this appeal is taken.

Plaintiff’s complaint alleged he had procured the execution of the standard form deposit receipt commonly used by real estate brokers in Los Angeles County. The receipt was signed by both buyers and seller and provided for the payment of broker’s commission of $13,500. The buyers repudiated the transaction and refused to sign escrow instructions to complete the sale. Thereupon, a second deposit receipt was executed by buyers, seller and plaintiff, wherein the broker’s commission was agreed to be $5,000. Again, buyers refused to sign escrow instructions and plaintiff brought this suit on three causes of action, the first for $13,500, the second for $5,000 and the third on a common count for services performed.

[508]

Plaintiff contends the amended complaint states a valid cause of action against seller and that, in the event it does not, he should have been granted leave to amend further.

Great liberality is allowed in permitting amendments to complaints, and it is an abuse of discretion to deny amendment if there is a reasonable possibility that the defects can be cured by amendment. It is presumed, however, that a pleader has stated his ease as strongly as it can be stated, particularly where he has already been granted leave to amend.

(Higgins

v.

Security Trust

&

Savings Bank,

203 Cal. 398 [264P. 744];

Baldwins. Daniels,