Williams v. Gaither

PEEK, P. J.

Plaintiff appeals from an adverse judgment entered pursuant to a verdict of the jury in an action to

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recover a broker’s commission, and from the order denying his motion for a summary judgment.

By his complaint, plaintiff alleged that by a contract in writing (standard form authorization to sell) he was employed as a real estate broker by defendants to procure a purchaser for real property owned by them; that by the terms of said agreement, defendants agreed to pay him a commission; that within the period of time set forth, he procured purchasers who were ready, willing, and able to purchase the property; that the offer of the purchasers was accepted in writing by defendants, and that plaintiff performed all of the conditions imposed upon him under the contract, but that defendants refused to pay.

The answer of defendants admitted the execution of the authorization to sell and that nothing had been paid by them to plaintiff, and denied generally the remaining allegations of the complaint. However, at the outset of the trial, defendants stipulated that they duly executed the deposit receipt. Additionally, defendants’ answer alleged that the authorization to sell had been canceled by “mutual agreement of the parties.”

From the pretrial conference order and from discussions which occurred in chambers between court and counsel prior to the trial, plaintiff’s position appears to have been that since he had performed everything incumbent upon him, the sole question was one of law.

The position taken by defendants, and which was shared by the trial court, was that since the authorization to sell described defendants’ property by lot, block, and tract numbers, and since the deposit receipt contained the phrase, “The description (Legal) of the property and boundary lines are subject to acceptance by the buyers,” the sellers could not perform without the buyers’ acceptance; that buyers were not satisfied with the description of the property contained in the deed deposited in escrow by sellers; and that therefore, there was neither an enforceable contract nor a completed sale and hence, no commission was owing to plaintiff. We find no merit in these contentions.