Trickey v. Smith

BARNARD, P. J.

This is an action to recover a commission for the sale of certain real estate. The following facts are not disputed: On November 18, 1929, the defendants signed and gave to the plaintiff, a licensed real estate broker, a listing authorizing the plaintiff to sell the property in question for $43,125, and agreeing to pay him a commission of five per cent of the selling price in the event he was able to sell or procure a purchaser for the same. On September 15, 1930, and while said listing was still in force, the plaintiff procured a purchaser for defendants’ property on the basis of part payment in cash and the balance through an exchange of other property. This purchaser and the defendants entered into a written agreement providing for the exchange of their properties on definite terms named therein. Among other things, the defendants agreed to convey the property they were selling free and clear from encumbrances, although at the time it was encumbered by a mortgage. This agreement further provided that the defendants would pay to the plaintiff as a commission for procuring this exchange of real properties, the sum of $1250. On September 15, 1930, this exchange agreement, with appropriate instructions, was placed in escrow with a certain title company. On November 14, 1930', while this escrow was still pending, the plaintiff and the defendant Floyd B. Smith signed and placed in the same escrow a supplemental escrow instruction by which it was agreed that all previous instructions relative to the commission to be paid to the plaintiff were canceled and, in lieu thereof, providing that the sum of $975 was to to be paid as a commission to the plaintiff from the defend

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ant Floyd B. Smith. The defendants were unable to raise the money on other property they owned with which to clear the title to the property they were selling and, after waiting until December 15, 1930, the other party to the exchange agreement withdrew from the escrow and refused to give further time for the completion of the exchange. Under the agreement of exchange, the deal was to have been completed “within a reasonable time” after September 15, 1930. The court found that the other party to the agreement waited for a reasonable time after that date and this finding is not attacked. Judgment was entered in favor of the plaintiff for $975 with interest, and the defendants have appealed.