Swank & Letton v. Roberts

CONREY, P. J.

The defendant presents this appeal from an order denying her motion for a new trial.

On June 22, 1911, the defendant agreed in writing with Walter J. Sherwood, plaintiff’s assignor, for services to be rendered in the sale of defendant’s lease of certain apartments in the city of Los Angeles. Said writing contained the following agreement: “It being understood that Walter J. Sherwood has now a prospective purchaser from whom he expects to secure a sum of fifteen hundred dollars for the lease on the above mentioned apartments, and should he succeed in consummating a deal with this purchaser shall be paid the sum of five hundred dollars.” On June 23, 1911, Sherwood brought to plaintiff the prospective purchaser, one Sumner Cummings, who then and there entered into a written contract with the defendant and paid the sum of fifteen hundred dollars, of which one hundred dollars went directly to the agent and fourteen hundred dollars to the defendant. By the terms of said writing with Cummings the defendant acknowledged receipt of fifteen hundred dollars, “part payment for lease on Navarro Apartments, . . . and upon receipt of the further payment of $1833.32 on or before the 15th day of July, 1911, I agree to transfer the said lease and deliver possession to said Sumner Cummings, ...” The evidence shows that at the meeting of Sherwood, Cummings, and Roberts, Mrs. Roberts explained that the landlord held $1833.32 of her money as security for the rent of the last two months of the term of the lease and that the purchaser would have to pay that before she could transfer the lease to him. To this Cummings consented and the time stated in the contract was allowed him

[732]

to obtain and pay that amount. Cummings failed to make the additional payment and no transfer of the lease was ever made. The court having entered judgment in favor of plaintiff for four hundred dollars, with interest, the defendant moved for a new trial. This appeal is from the court's order denying said motion.

Appellant claims that the court erred in overruling her objection to the fourth direct interrogatory in the deposition of Sherwood, which ruling is assigned as an error of law-occurring at the trial. Referring to the agency contract, the witness was asked to state what was meant by that clause in the contract reading as follows: “And should he succeed in consummating a deal with this purchaser shall be paid the sum of five hundred dollars, ’ ’ to which the witness answered: “My very clear understanding was that when I obtained fifteen hundred dollars for her lease, I was to receive five hundred dollars for it.” The objection should have been sustained. But in view of our interpretation of the contract as hereinafter stated, the error was without prejudice.