Gallwey v. Galbreath

[121]

KERRIGAN, J.

This is an appeal from a judgment in favor of plaintiff for services rendered by his assignor as a broker upon the exchange of certain real property. Plaintiff had judgment below, and defendant appeals.

[1]

It is first claimed that the evidence is insufficient to support the findings and judgment.

We see no merit in this contention. _ It appears from the evidence that defendant delivered to J. W. Wright & Co., á corporation, engaged in the real estate business, a written proposal for the exchange of certain real property controlled by him for certain other property owned by one Dawson Company. The properties were of different value and were both subject to encumbrances. By the terms of defendant’s proposal he agreed to pay as an additional consideration for said exchange the sum of ten thousand dollars. This sum was to be partly made up from amounts due defendant upon certain warrants for fire insurance by,reason of a fire loss on the property he sought to exchange. The evidence further shows that the Dawson Company was procured by Wright & Co. and that it accepted defendant’s offer, and that the respective parties thereafter ordered the titles' examined, and caused to be prepared by Wright & Co. a statement prorating the interest, taxes, and water rates, with a view of consummating the exchange within the time limited by agreement. It is also in evidence that the Dawson Company placed in escrow its deed with the title company, and that defendant did likewise, and in addition thereto deposited his check for the amount found to be due him to the Dawson Company as represented by the prepared statement. Thereafter defendant withdrew his deed and check and refused to go on with the arrangement. It also appears that the Dawson Company was always ready, able, and willing to make the exchange upon defendant’s own terms. The evidence, therefore, in this respect supports the judgment.

• Further grounds are urged by appellant for a reversal. It is claimed, first, that defendant’s proposal of exchange required the Dawson Company to assume the mortgage on the Galbreath property, and that the evidence failed to show that it had consented to this requirement, but that, on the contrary, it had only agreed to take the property subject to the mortgage. It is also claimed that as it appears from