Price v. Eisan

WARNE, J. pro tem.

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This is an action for specific performance of a contract for the sale of real and personal property. Judgment was entered in favor of plaintiff and defendants have appealed.

The record shows that on February 19, 1959, plaintiff and defendants executed an agreement wherein the defendants agreed to sell 160 acres of land and certain personal property to plaintiff for the sum of $23,000, plus the current grape crop, which was reserved to the sellers. The agreement was made subject to the plaintiff (buyer) obtaining a right of way for road purposes and utilities at no cost to the defendants. The transaction was handled by one Walter G. Shaw, a real estate broker. The property was not listed with Mr. Shaw but defendants orally agreed that Shaw could attempt to find a buyer and if he did they would pay him a 6 per cent commission.

Over a period of several months the broker brought a number of prospective purchasers to the property to examine it, including the plaintiff, George R. Price, Jr., who was in search of real property to purchase. Price made an initial offer of $19,000 for the property, two subsequent offers at increasing prices, and the final offer which was accepted. Subsequent to

[365]

the execution of the agreement the defendants refused to convey the property and served plaintiff’s attorney with a written notice of rescission of the agreement. Plaintiff then brought this action to compel defendants to convey the subject property or for damages in the alternative in the event specific performance should be denied.

Defendants contend that they were entitled to rescind their contract as a matter of law. They base this contention on the assertion that Shaw, the real estate broker, although purporting to be defendants’ agent, was, in effect, the agent of the plaintiff at the time of the execution of the contract.

In their answer to plaintiff’s complaint defendants allege as a special defense that plaintiff’s agent, Shaw, falsely and fraudulently represented to defendants that the property was not worth more than $23,000, and that he did not disclose to them that he was acting as an agent for plaintiff, but, on the contrary, at the time of the execution of the agreement purported to be acting as a real estate agent for defendants. The trial court found that these allegations were untrue. There is ample evidence in the record to support these findings.