Sprague v. Dolan

STURTEVAN T, J.

The plaintiffs commenced an action to recover a judgment for commissions alleged to have been earned as brokers in making a sale of an apartment house for the defendant. The case was tried by the trial court sitting without a jury. Judgment went for the plaintiffs as prayed and the defendant has appealed under section 953a of the Code of Civil Procedure.

Prior to March 30, 1923, the defendant held a lease on an apartment house at number 2402 California Street in San Francisco. The furnishings therein were owned by him. The lease had nearly expired and had but a short time to run. Under these circumstances the plaintiffs applied to the defendant for authority to negotiate a sale of the defendant’s interests. After some bartering an authorization was executed in writing giving the authority for the period of five days from March 30, 1923. March 30, 1923, was Friday, and the last day under the terms of the contract, therefore, was Wednesday, April 4, 1923. The price named in the authorization was $11,000, and the commission agreed upon was five per cent. The client of the plaintiffs was Mr.

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La Lanne. Mrs. Sprague took him to see the property on March 30, 1923. He made an examination of the whole. Then followed bartering as to the price to be paid. Mr. La Lanne wanted the property at $10,000. The defendant would not consent to modify the price above mentioned, $11,000. No written contract was ever executed between the owner and the purchaser. Mr. La Lanne never told the defendant nor the defendant’s wife that he would pay $11,000, never tendered that sum, never applied for transfer papers, and never directly held any communication with the defendant or his wife except as above mentioned. Mrs. Sprague testified that La Lanne stated to her that he would pay the $11,000 and that she telephoned that fact to Mrs. Dolan on Monday, April 2, 1923.

On the trial of the case the plaintiff called as a witness Mr. La Lanne. He testified that he was ready and willing and financially able to pay $11,000; that he did not sign any contract for $11,000, but he just agreed that he would pay $11,000 because Mr. Dolan at one time was ready to sell for $10,000 and it was not up to the witness to offer $11,000 when the owner was ready to sell it for ten.