Zimmer v. Edinger

STEPHENS, J.,

pro

tem.

This is an action for real estate commission. Plaintiff alleged three causes of action in his second amended complaint. The answer admits there was an authorization in writing from defendant to plaintiff as alleged in the complaint, but denies that any sale was consummated thereunder or commission earned. The court’s findings are that plaintiff’s allegations are true in the main, and judgment was awarded against defendant in the sum of $1,770, the full amount prayed for, together with costs. Defendant appeals from the judgment under the alternative method, and presses the points that the findings are not supported by the evidence and that the court committed error in the admission of evidence relating to custom in the matter of a cash deposit in escrow pending search of title, etc.

The facts relating to the first alleged cause of action are as follows: The defendant-appellant owned certain property in that part of the city of Los Angeles known as Sawtelle. The plaintiff-respondent, a real estate agent who had formerly done some business with appellant, and who was personally acquainted with him, was trying to arrange for the leasing of a theater which appellant contemplated building on his property. In this connection respondent introduced appellant to a Mr. Fyhn as a possible lessee. Appellant soon abandoned the project, however, as it entailed an expenditure beyond his means. There was some discussion

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during the summer between the three, looking to a sale of 60 feet of the property to Fyhn for $250 a front foot. Nothing definite on this occurred, but on October 24, 1922, Fyhn stated to respondent that he had made arrangements for money with the Citizens Bank, through a Mr. Sehnell, and was ready to buy. Respondent then went to appellant (he testified that he told appellant about Fyhn’s statement) and secured the following document:

“Sawtelle, Calif.,

“October 25-1922.

“I hereby appoint and nominate N. W. Zimmer a licensed Real Estate Broker, of Sawtelle, Calif., as my personal and sole agent for a period of ten days from date to sell for me the following described property situated at the North East corner of Santa Monica Blvd. and Gettysburg Ave. Sawtelle, Calif, and further known as lots (8) Eight and (9) Nine, Block H, Barnett Villa Tract, at the price of $250 a front foot on the Santa Monica Blvd. frontage approximately 142 feet more or less, either 60 ft. or all of said frontage. In case the said N. W. Zimmer consummates a sale for me within the prescribed time I agree to pay him a commission of 5% on the purchase price.