Wiseman v. Ross

California Court of Appeal Apr 4, 1962 No. Civ. 19507Published

Before: Bray

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Holding. The court held that the plaintiff failed to produce a buyer ready, willing, and able to purchase the property on the terms specified in the agreement, as the proposed financing did not allow the sellers to receive the required $95,000 total price while "cashing out" with $25,000 in cash.

Issues

Did the plaintiff produce a buyer ready, willing, and able to purchase the property in accordance with the terms of the agreement?

Disposition. reversed

Quotations verified verbatim against the opinion

“In spite of the court’s finding to the contrary, it is clear that the buyers were not ready, able or willing to provide money or securities which would enable defendants to “cash out” with a minimum of $25,000 and at the same time meet a purchase price of $95,000.”

“In any aspect of the case, whether the figures of plaintiff as to the total value of the purchasers’ deposit in escrow, or the figures in the buyers’ and proposed sellers’ instructions to the title company are accepted, the “cashing out” proposed by plaintiff and the buyers meant a reduction in the purchase price to which defendants had not agreed.”

[139]

BRAT, P. J.

Defendants appeal from a judgment in favor of plaintiff for $5,000 real estate broker’s commission and $750 attorney’s fees.

Question Presented

Did plaintiff produce a buyer, ready, able and willing to buy?

Record

On June 13, 1959, defendants held motel property in Redwood City in joint tenancy. Helge Bly and Bdyth Bly owned a minor interest therein, also. The property was subject to certain encumbrances. On that date, plaintiff, a real estate broker with whom defendants had listed the property, informed defendants that he had an offer for it. They came to his office and discussed the offer. The offer was on a uniform agreement of sale and deposit receipt signed by the prospective buyers, Mr. and Mrs. Sochor. The purchase price was $92,500,—$25,000 cash payment, balance to be financed as there set forth. Defendants left, apparently to phone the Blys about the offer. About 7:30 defendants returned with the agreement signed by them in which they agreed to pay plaintiff a commission of $5,000 and attorney’s fees in ease of suit. However, defendants had written on the back of the agreement a counteroffer. It was understood that the agreement had no effect unless the counteroffer were accepted by the buyers. This counteroffer stated: “We will accept $95,000 price, providing we are able to cash out with a minimum of $25,000 to us after loans and commissions are paid. We will accept financing for balance.” In turn the Sochors accepted the offer, signing below the counteroffer.

Plaintiff attempted to obtain the necessary financing for the Sochors. During the course of the next month and a half, his efforts were unsuccessful. Finally, on July 23, certain moneys and documents hereinafter discussed were deposited with the title company by the Sochors.

July 31, the title company notified defendants that it had all the funds and documents necessary to close the sale on the terms set forth in certain “Seller’s Instructions” prepared under instructions of plaintiff, which defendants had not signed, and asked defendants to come in and sign the instructions and a deed. About this time Ross clearly indicated that Mrs. Ross was not in favor of the altered conditions of the sale. It is not clear whether prior thereto Ross indicated that he did riot speak for her. August 3, because of the failure

Wiseman v. Ross

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BRAT, P. J.

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