Martin v. Culver Enterprises, Inc.

COUGHLIN, J.

Plaintiff, a real estate broker, obtained an exclusive three-day listing upon defendants’ property to sell the same for not less than $500,000, which provided for payment of a commission in an amount the actual sale price exceeded $500,000. Plaintiff brought this action on the listing agreement contending he had obtained a purchaser ready, willing and able to pay $533,000 cash; sought recovery of $33,000 as a broker’s commission; received an adverse verdict after jury trial; and moved for judgment notwithstanding the verdict, and alternatively for a new trial, which was granted. Defendants appeal from the judgment entered accordingly, and from the order granting the new trial which was to be effective in the event the judgment was reversed on appeal. (Code. Civ. Proc., § 629.)

The determinative issues on appeal are (1) whether the evidence establishes as a matter of law that plaintiff obtained a purchaser ready, willing and able to purchase defendants’ property upon the terms set forth in the listing agreement; and (2) in the event the evidence does not sustain plaintiff’s cause of action as a matter of law, whether the state of the record is such as to authorize the trial court to grant a new trial because of the insufficiency of the evidence to support the verdict.

At the trial defendants attempted to introduce parol evidence for the alleged purpose of clarifying the provisions of the listing agreement. An objection thereto was sustained. On appeal they contend this was error. The listing agreement provides .for the payment of a commission in the event the property is sold during the three-day listing period; fixes the sale price at $500,000 plus whatever commission the broker was to receive; provides for a deposit of $50,000 in escrow upon execution of instructions, and the balance to be in cash; and further provides that the owners reserved the right “to interject a trade, provided said trade would not interfere with closing this escrow”, and that the owners reserved the right to lease the property “for 5 years at $28,000.00 per year, Cash, Payable % Aug. 1, % Feb. 1, each year of lease with privilege of Subletting.” There was no ambiguity or uncertainty in these provisions which authorized the introduction of parol evidence.

[928]

The evidence is sufficient to establish that within the three-day period plaintiff obtained a purchaser for the property for $533,000; the purchaser, viz., Cunningham Company, deposited $50,000 in escrow, and caused escrow instructions to be prepared, but did not sign the same; and defendants, owners of the property, refused to sell. The escrow instructions provided that closing the escrow was subject to the closing of two other escrows. It appears Cunningham Company was acquiring the subject property in order to fulfill a commitment in another escrow wherein a part of this property was to be transferred to a person named Post. The other escrows referred to the Cunningham-Post transaction. At the trial an officer of Cunningham Company testified the company intended to purchase the subject property even though the escrows involving the Cunningham-Post transaction were not closed, i.e., that Cunningham Company intended to purchase the subject property in any event. The same officer also testified Cunningham Company was able financially to pay the $533,000 in cash. Plaintiff attempted to communicate the offer of purchase to defendants, and to advise them of the proposed escrow, but was unable to do so because the individual defendant, who was also an officer of the corporation defendant, was away. The individual defendant learned of the escrow from an escrow officer when preparing an escrow for a sale of the property to another prospective purchaser.