Justice v. Ackerman

VALLÉE, J.

Appeal by defendants from an adverse judgment in an action to recover a broker’s commission on the sale of a bowling alley, saloon, and restaurant.

The only question for decision is whether the evidence supports the finding that “plaintiff was the effective and procuring cause of the sale,” in other words, that plaintiff produced purchasers able, ready, and willing to buy.

Defendants, as partners, were the owners of a bowling alley business consisting of a liquor license, stock in trade, fixtures, equipment, and good will. On January 21,1957, defend

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ants gave plaintiff an exclusive listing in writing in which they authorized him to sell the business and agreed that in the event of a sale during the effective period of the listing they would pay him a commission on closing of escrow.

The listing expired March 1, 1957. At that time plaintiff had not procured a buyer for the business. Defendants refused to renew the exclusive listing but agreed with plaintiff that he continue his efforts to obtain a buyer. Plaintiff did so through his salesman, Mr. McAlwee.

In May 1957 plaintiff contacted a Mr. Linstedt. Linstedt and defendants negotiated until the end of July 1957. About July 10 McAlwee contacted Wilbur Anderson and Gilbert Robbins and brought them into the negotiations with defendants jointly with Linstedt. During the negotiations plaintiff received from defendants profit and loss statements covering August 1, 1955 to July 31, 1956, and August 1, 1956 to May 31, 1957, a balance sheet dated July 31, 1956, one dated January 31, 1957 and one dated March 31, 1957, all of which he gave to Robbins on July 16,1957. He told defendant G. W. Ackerman he had done so. Anderson returned the statements to plaintiff about two weeks later. During the negotiations plaintiff also gave Anderson and Robbins a letter which showed the earnings of the business, its financial condition, and its earning potentialities. During that period plaintiff also gave defendants a copy of a written offer by Linstedt to defendants to buy the business for $150,000.

About July 31 this conversation took place between defendant G. W. Ackerman and Mr. McAlwee: Ackerman: “ ‘Well, Mae, I will tell you, we haven’t got any deal from Mr. Lind-stead