Dyar v. Stone

RICHARDS, J.

This is an action by a real estate broker to recover a commission alleged to he due upon an exchange of a ranch of the respondent, situated in Fresno County, for an apartment house of one Winifred M. Whitney located in Los Angeles. The transaction was never completed by an actual interchange of these properties.

The facts as developed at the trial were substantially these: The plaintiff in the year 1911 was a real estate broker in Fresno. The defendant, also residing in Fresno, was the owner of a large ranch near Raisin City, with respect to which said plaintiff undertook to negotiate an exchange for the Whitney apartment house in Los Angeles. After apparently proceeding some length with this effort he obtained from Stone a writing in the following words:

“Fresno, Cal., August 17th, 1911.

“In the event that an exchange of my ranch of 647 acres near Raisin City for the Whitney apartment house in Los

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Angeles, Cal., is consummated by me, I agree to pay Guy E. Dyar, as agent, a commission of 3% upon the value of my land in the trade (namely, $25,000), it being understood that this commission is the total and only commission tc be paid by me on said exchange of properties.

“J. B. Stone.”

Thereafter and on or about August 29, 1911, Stone went to Los Angeles, and was taken by a Mr. Boynton, the agent of Mrs. Whitney, to see her property. On September 25th Mrs. Whitney went with Boynton to Fresno to inspect the Stone Ranch. On the same day Stone made and signed a proposition for the exchange of properties, which proposition contained a number of conditions to be complied with by Mrs. Whitney, among which was the requirement that the proposition should be accepted within three days, and that within fifteen days thereafter the other specified conditions contained in the proposal should be complied with by her. On September 28th Mrs. Whitney indorsed her acceptance of the proposition upon it; and on the following day Stone placed in escrow with the Title Insurance & Trust Company of Los Angeles the money and documents required for the carrying into effect of said pfoposition on his part, expressly directing that his money and documents were to be returned to him if the escrow was not complied with and the transaction completed within fifteen days.