Torlai v. Lee

GARGANO, J.

Appellants Bo W. Lee and Kam Lan Lee appeal from a judgment of the court below awarding respond

[856]

ent a real estate commission for an abortive real estate transaction.

1

The undisputed facts are these: Appellants own a hotel in San Joaquin County known as the Basconia Hotel. On Friday, May 13, 1966, Peter Lucchesi, a real estate salesman employed by respondent, telephoned appellant Bo W. Lee to inquire whether he would be willing to sell the hotel. Appellant replied that he would for $85,000. Lucchesi told Lee that he had a buyer who would pay that price. Then the parties discussed the terms of sale.

Later that da.y Lucchesi met Mr. Lee at his hotel and presented him with a deposit receipt signed by a Mr. Youns Khan, which acknowledged deposit in the broker’s trust account of a cheek in the amount of $2,000. The deposit receipt contained Mr. Khan’s proposal to purchase the hotel for $85,000 with a down payment of $15,000 and the balance payable a.t $500 or more monthly. However, the proposal was conditional, and hence the deposit receipt also contained the following pertinent provision:

“This contract contingent on Buyer's approval of said building upon inspection within two days from date of acceptance by Seller and present lease on forty hotel rooms (payable $275.00 or more monthly) will expire on Feb. 1, 1967 with no option to renew said lease, and Bar lease (paying $300.00 monthly) being effective until Oct. of 1970. If any of the above Terms or Conditions cannot be met all money will be refunded. ”

Mr. Lee and his wife, Kam Lan Lee, examined the deposit receipt, conversed in Chinese, and requested a correction in the amount of the leases; then Bo W. Lee signed it.

Three days later, on Monday, May 16, 1966, Lucchesi went to appellants’ home to communicate the buyer’s acceptance. However, he was told by Mr. Lee to see his son, who is a lawyer. Later, at the lawyer’s office, Lucchesi was told that the offer was withdrawn.

It is conceded by both sides that this is not a situation in which a real estate broker who had a listing contract to sell real property, and who timely produced a ready, willing and able buyer, was deprived of his commission by his client’s arbitrary refusal to consummate the real estate transaction. On the contrary, respondent made the initial contact on