Beckwith-Anderson Land Co. v. Allison

CONREY, P. J.

This is an appeal from a judgment entered in favor of the plaintiff. It is presented upon the judgment-roll and a transcript of the evidence.

The plaintiff is a corporation. S. B. Anderson and H. H. Beckwith are partners doing business under the name of Beckwith & Anderson. The action is by the corporation, which seeks to recover the sum of one thousand five hundred dollars on an alleged contract to pay commissions for services rendered in procuring a purchaser for certain real and personal property of the defendant. The material facts are as follows: On October 4, 1910, the defendant gave “to the Beckwith-Anderson partnership” the exclusive right for the term of three months to sell the property in question for thirty-three thousand five hundred dollars. According to the undisputed testimony this contract was by subsequent

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agreement continued in force until on and after March 25, 1911. Plaintiff’s action is upon an alleged written contract between plaintiff and defendant of date March 25, 1911, concerning which the evidence is as follows: On March 22, 1911. a letter signed Beckwith-Anderson Land Co., was sent by Mr. Beckwith from Tulare, California, to the defendant at Mesa, Arizona, in which the former writing is referred to as “our option,” and stated an offer received to purchase said property for thirty thousand dollars, payable fifteen thousand dollars cash on the making of the transfer and the balance in one, two, and.three years at six per cent. The letter says: “If you should consider this we would want to retain as a commission for cursives 5%, being fifteen hundred ($1500.00) dollars out of the first cash payment of fifteen thousand ($15,000.00).” Under date of March 25th defendant telegraphed: “To Beckwith and Anderson, Tulare, California. Accept offer, and write me when deal is closed. ’ ’ On or about April 3d and under that date an agreement was entered into “between S. B. Anderson and H. H. Beckwith,” parties of the first part, and the proposed purchaser, J. E. Davidson, party of the second part, and signed by those parties. According to this agreement, the first parties agreed to sell and convey to the second party the said property for the sum of thirty thousand dollars, of which one thousand dollars was paid forthwith; fourteen thousand dollars was to be paid on execution and delivery of deed and fifteen thousand dollars in three equal installments of one, two, and three years at six per cent. There were recitals showing that the title to the property was in the defendant and the agreement made subject to his approval and ratification and that it was made by the first parties as his agents. It was further provided that upon failure of the second party to comply with the terms of the agreement, both as to depositing in the First National Bank of Tulare the said sum of fourteen thousand dollars and as to the mortgage for the other installments, “then 'the said parties of the first part and their principal, W. B. Allison, shall be released from all obligations in law and equity to convey said property and all • rights of said second party herein shall cease and the said sum of one thousand dollars paid hereunder shall be forfeited as damages for the nonfulfillment of the conditions hereof by said second party.”