Rocks v. Hamburger

[196]

MUSSELL, J.

Appeal from judgment in an action for real estate broker’s commission.

Plaintiffs Madge Rocks and Lowell Wheeler commenced this action against Louis Hamburger and Celia Hamburger, defendants, to recover a real estate commission. Plaintiffs alleged that as real estate brokers, and pursuant to agreements with the defendants they, the plaintiffs, were entitled to a commission in the sum of $1,500 from defendants Louis Hamburger and Celia Hamburger, owners of the real property. The defendants filed their answer alleging that the purchasers of the property, Edward W. Jones and Viola F. Jones, did not carry out the terms of the contract of purchase and sale and that plaintiff brokers had not found purchasers who were ready, willing or able to purchase the property. It was further alleged that they, the defendants, under the terms of a certain sales deposit slip, were entitled to one-half of the $1,500 deposit money paid by the purchasers. Defendant owners then filed a cross-complaint against the plaintiff brokers, the Bank of America as escrow agent of and holder of the deposit money, and against the purchasers of the property. By their cross-complaint defendant owners sought to recover one-half of the deposit money. Plaintiff brokers, in their answer to the cross-complaint, filed a general denial and took issue with the defendant owners’ interpretation of the terms of the sales deposit receipt. Cross-defendants Jones, in their answer to the owners’ cross-complaint, alleged that they were at all times ready, willing and able to perform their obligations under the contract of purchase and sale; that the defendant owners had defaulted under the agreement; that the sales deposit receipt attached to the owners’ cross-complaint was not a true copy of the deposit receipt as signed by them. The Joneses filed a cross-complaint for money had and received and asked for the return to them of the deposit of $1,500, and that the plaintiff brokers and defendant owners take nothing.

Some time prior to August 14, 1946, the defendants Mr. and Mrs. Hamburger authorized the plaintiffs Rocks and Wheeler, as real estate brokers, to procure a purchaser for a duplex then being constructed at Palm Springs, and owned by Mr. and Mrs. Hamburger. The brokers prepared and presented to the purchasers a sales deposit receipt and Edward W. and Viola F. Jones signed one copy as purchasers. A carbon copy of the receipt was presented to the Hamburgers for signature. The receipt contained ■ a provision to the