Fugate v. Cook

California Court of Appeal Aug 19, 1965 No. Civ. 535Published

Before: Conley

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Holding. The court held that summary judgment was improper because the defendants' affidavits raised triable issues of fact regarding whether a contract was ever formed and whether the purchaser's offer constituted an unqualified acceptance of the listing terms.

Issues

Whether a triable issue of fact existed regarding the conditional delivery of the listing agreement.
Whether a triable issue of fact existed regarding whether the purchaser's offer constituted an unqualified acceptance of the listing terms.

Disposition. reversed

Quotations verified verbatim against the opinion

“The issue to be determined on a motion for summary judgment is whether in the affidavits in support of, and in opposition to, the motion there is shown a triable issue of fact”

“The defendants thus contend that there was a condition precedent to the taking effect of the real estate contract which was not fulfilled”

“In any event, there was not an unqualified acceptance of the terms of the alleged offer, according to the appellants.”

CONLEY, P. J.

The trial court granted plaintiff’s motion for a summary judgment pursuant to section 437c of the Code of Civil Procedure, and the defendants appealed.

Defendants, Neil L. Cook and Louise C. Cook, his wife, owned real property as joint tenants. About April 1, 1963, Mr. Cook signed a listing agreement purporting to employ plaintiff to procure a purchaser for the real property. He handed it to respondent’s agent, J. C. Mealey, with the oral understanding, as he contends, that the agreement would have to be signed by his wife before it would take effect. This was never done.

Within the time specified in the contract, Mr. Mealey, acting for the plaintiff, obtained as a proposed purchaser for the property a Mr. Hutchinson, who made an offer to buy the real estate on terms which plaintiff claims were in compliance with the authorization. Mealey arranged for an escrow; in the escrow papers it was stated, over the signature of Hutchinson, that the balance of $30,000 was to be paid in yearly installments of “$5,000 or more.” These instructions were approved and signed by Hutchinson, but when the document was presented to the appellants, they refused to approve it, stating, among other things, that the provision permitting a payment of more than $5,000 per year was contrary to the terms of the agreement which Mr. Cook had approved. Mr. Hutchinson refused to change the “or more” provision in the escrow papers, and sometime afterwards withdrew his offer to purchase the property.

The respondent made demand for the payment of a broker’s commission, and when appellants refused, the action was started. Thereafter, following the filing of an answer, plain

[702]

tiff made a motion for a summary judgment which was granted by the court. The judgment was against both defendants in the amount of $3,000, with interest and costs.

The code provisions for a summary judgment were never intended to eliminate the jury as a finder of fact in the ordinary circumstances of litigation, or to substitute a general shortcut for the trial of actions. As is said in

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Fugate v. Cook

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CONLEY, P. J.

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