S. H. West & Co. v. Wagner

BISHOP, J.,

pro

tem.

Plaintiffs successfully sought a judgment for brokers’ commissions earned by securing an

[524]

acceptance of an offer to exchange real estate. We are of the opinion that the judgment must be affirmed.

Defendants placed in the hands of plaintiffs, the record shows, a writing signed by themselves containing an offer to exchange their property, subject to a mortgage for $15,500 and other encumbrances, for certain other property described in the writing, subject to its listed encumbrances. The writing also contained a statement that S. H. West & Co. was irrevocably appointed defendants’ agent to negotiate an acceptance, and that they agreed to pay “said agent S. H. West & Co. and A. Stanley White a commission for his services $500.00, immediately upon the procuring by him . . . of said written acceptance of this offer”. It was further provided that the agent for either party to the exchange might act for the other party and receive a commission of not to exceed $1500. The writing continued: “It is further agreed and understood, that if for any reason whatsoever either or all of the principals to this agreement, shall fail to comply with same, and in consequence this exchange shall fail of consummation, then the party or parties at fault for such failure agree to pay S. H. West and Company the full commission for both sides together with attorney and escrow charges.”

The same day plaintiffs presented this offer to the Wilsons, who signed an acceptance unconditionally. They further agreed to pay plaintiffs a commission of $1500. Within five days thereafter the parties entered escrow, conditioned upon each complying with the escrow instructions within thirty days. This the 'defendants failed to do, and the Wilsons terminated the escrow and called the deal off.

With these facts as a background the parties entered upon the trial with a statement, made hy the plaintiffs and echoed by the defendants, that there were only two issues involved: (a) “whether the defendants in the case were the parties at fault in failing to consummate the transaction”, or whether they were excused by their special defense; and (b) whether or not the contract is such that plaintiffs were entitled to attorney’s fees. As the trial court found on the second issue in favor of appellants, the first is the only question presented both to the trial court and to us. The theory of the case, thus framed by the statement to the trial court, is in harmony with the pleadings, where the only issue