Falkenberg v. Giacomazzi

NOURSE, J.

Defendant appeals from a judgment rendered against him and in favor of plaintiff for six hundred dollars as a real estate broker’s commission on the ground that the evidence is insufficient to support the judgment.

The contract between plaintiff and defendant gave plaintiff the exclusive right of sale for a period of thirty days from date (March 17, 1920), and thereafter until ten days’

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written notice of cancellation; fifteen thousand dollars was the selling price named therein, and it provided for payment to plaintiff for services rendered in securing a buyer of five per cent commission on the above-mentioned sale price “or any less price that may hereafter be agreed upon.” April 28, 1920, defendant notified plaintiff that the contract was canceled. But the court found that the “plaintiff had prior to the giving of said notice secured said F.' V. Ferrari as a purchaser of said real property”; also, “that plaintiff was instrumental in obtaining said F. V. Ferrari as a purchaser of the real property referred to in said count, and that said purchaser was secured by the plaintiff pursuant to and within the time limited by the contract, referred to. ’ ’ Defendant personally sold the property to Ferrari on the day notice of cancellation was given.

The only question for determination on this appeal is whether plaintiff was instrumental in making the sale. Defendant challenges the findings that he was, claiming the evidence does not show that plaintiff was the procuring or inducing cause of the sale. He also claims that the court erred in its ruling on certain questions asked by defendant to show whether the moving cause of the sale was plaintiff's act in showing the property to Ferrari or the latter’s prior knowledge that it was for sale.

On April 16, 1920, plaintiff took Ferrari to see the ranch and the two went all over it and examined it thoroughly. Ferrari objected to the price and plaintiff told him to go and see defendant and he might sell for a cheaper price than that named in the contract. Ferrari did talk to defendant a few days later and on a number of subsequent occasions and made an offer of twelve thousand dollars for the land. They finally agreed upon twelve thousand seven hundred dollars for the land and all the personal property thereon, including the crops, the trial court finding that twelve thousand dollars was paid for the land and seven hundred dollars for the personal property. Ferrari then gave defendant his check for one thousand dollars on the purchase price and' defendant gave him a receipt therefor. Ferrari testified that this receipt provided that if plaintiff herein should claim a commission defendant reserved the right to call the deal off; that after this action was commenced defendant asked him for this receipt, which he kept, and