Lowe v. Loyd

MUSSELL, J.

This is an action by a real estate broker to recover commission.

Plaintiff and defendants executed a written contract on August 24, 1946, by the terms of which plaintiff was given an exclusive agency to sell the premises known as the “Adobe Motel” near Madera, in Madera County, for the sum of $185,-000, cash and terms to be arranged. The contract contained the following provisions:

[685]

“Should said agent or their authorized agent or agents be instrumental in procuring a person or persons ready, able and willing to osehango for or purchase the property described herein, in accordance with this agreement, I agree to pay said undersigned agent 5% of the selling price or exchange value as commission.

“This Authorization to Sell is to continue in full force and effect for a period of 90 days from date hereof, and thereafter until revoked by me in writing, but to terminate automatically six months after end of listing period.”

It is conceded that plaintiff did not procure a buyer for the premises in accordance with the terms of the contract. After the expiration of the 90-day period mentioned in the agreement, but within six months immediately following this period, defendants consummated an exchange of the property through another broker and did not pay plaintiff any commission. The escrow instructions on the exchange were dated March 17, 1947, and the deed by defendants conveying the property in the exchange was recorded on April 11, 1947. No written notice of the termination of the exclusive agency was given to plaintiff by defendants. It was stipulated that plaintiff was not in any way instrumental in procuring the exchange and there was no evidence that plaintiff or his agent or agents ever showed or submitted the property to the parties who acquired it in the exchange.

The complaint contains two causes of action, one for damages in the sum of $9,250 occasioned by defendants’ breach of contract in exchanging the property, and the other in the form of a common count for the same amount.

The- court found all of the allegations of the amended complaint to be true and judgment was entered in favor of plaintiff for the amount claimed.