Avis v. Rebhan

WOOD (W. J.), J.,

pro

tem.

Plaintiffs commenced the action to recover the sum of $1,075 alleged to have been earned as brokers’ commission in the sale of defendants’ ranch and certain personal property thereon. The appeal is prosecuted from a judgment in favor of defendants. On August 17, 1923, defendant J. C. Rebhan and Jennie L. Wagner met, through the instrumentality of plaintiffs, at defendants’ ranch and signed the following memorandum agreement for the purchase and sale of the property:

“Pomona, Calif., Aug. 17, 1923.

“Received from Jennie L. Wagner $500.00 on account of a total purchase price $33,000. for the 30% aere ranche of J. G. Rebhan, bounded on the N. by S. P. R. R., on the East by Romona Ave., on the South by Chino Ave., with all

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stock, tools and equipment 'except team of horses and % interest in the well, the buyer to assume a Government first mortgage of $8000.00 and a second mortgage of four thousand dollars. To pay $2500.00 cash on or before Septe. 20, 1923, and $500.00 or more monthly thereafter with interest on the deferred payments quarterly at 7%. All parties hereto agree to the above, also to enter into escrow at the bank Monday Aug. 20th where more details of the above will be entered into. Insurance to be prorated as of Sept. 20-2—21 milk cows and a bull go.

“J. G. Rebhan,

“Jennie L. Wagner.”

At the time the memorandum agreement was signed Mrs. Wagner paid $500 on account of the purchase price. On August 20th plaintiff W. M. Avis, Mrs. Wagner and .the defendants met at the First National Bank at Ontario and there a contract for the purchase and sale of the property was prepared by an officer of the bank and signed by Mr. and Mrs. Rebhan as sellers and Mrs. Wagner as purchaser. By the terms of this contract the purchaser was to pay $2,-500 by September 20, 1923, and $500 each month thereafter until the entire purchase price should be paid. The sum of $500, which had been paid by Mrs. Wagner, was by consent of all parties turned over by Mr. Avis to Mr. Rebhan. The contract itself, which was not signed in duplicate, was left with the bank. The defendants also left with the bank a bill of sale covering the personal property and a letter instructing the bank to pay to plaintiffs the sum of $1,075 out of the payment of $2,500 which Mrs. Wagner was to make on September 20th. A few days later Mr. and Mrs. Wagner wished to make certain changes in the contract and accordingly they met the defendants at the bank and attached a rider to the original agreement embodying the changes agreed upon. On September 19, 1923, the Wagners informed defendants that they would not for financial reasons be able to comply with the terms of the contract and Mr. Rebhan then told the Wagners to “let it drop.” On October 4, 1923, Mrs. Wagner and Mr. Rebhan met at the bank and an officer of the bank, with the consent of Mrs. Wagner, delivered the contract to Mr. Rebhan, who retained the sum of $500, the original payment made by Mrs. Wagner.