White v. Tullett

THE COURT.

An action by a broker to recover a commission for services alleged to have been rendered in procuring an agreement for the exchange of certain real estate owned by defendants. Defendants denied that plaintiff performed his agreement or that they agreed to exchange on the terms alleged, and averred fraudulent representations by the plaintiff and the party procured by him. Judgment was entered for plaintiff, from which defendants appealed.

According to the findings defendants on January 14, 1925, employed the plaintiff to procure a sale or exchange of their property, for which service they agreed to pay a commission. On April 3, 1925, C. R. Scott was the owner of certain real property in Oakland, California, and from him the plaintiff procured an offer in writing to exchange this property for that of defendants, which offer the latter accepted. Defendants independently of plaintiff examined the Oakland property before they accepted the offer and knew its value, condition and the income therefrom, which the plaintiff at no time misrepresented. The offer from Scott contained a provision that the same should not be effective if within ten days from its date he should exchange the Oakland property for certain property owned by a third person with whom he was then negotiating. This prospective exchange was not made and defendants were so advised. Scott thereupon tendered " to them a conveyance sufficient to convey title in accordance with the exchange agreement, which defendants refused, stating that they declined to perform. It was further found that defendant A. Tullett read and fully understood the contract; that neither its contents nor legal effect was misrepresented to defendants; that all statements made to them by Scott and another were true; that Scott was at all times ready, willing and able to perform the exchange agreement and that plaintiff had performed his contract.

Defendants, as grounds for their appeal, claim that portions of the above findings are unsupported. After a careful examination of the record we are satisfied that the

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. findings are fully sustained. While the evidence was conflicting and other conclusions might reasonably have been drawn therefrom, the weight to be given thereto, as well as the inferences to be deduced, were questions for the trial court, and its conclusions cannot be disturbed on appeal