Carl v. Eade

HOUSER, J.

It appears that one Fred W. Carl, as a real estate agent sold for defendant certain premises at a price of $18,000; that the terms of sale were |2,000 cash and other property, the assumption by the purchaser of a mortgage on the property amounting to $6,000 and a note and trust deed back to the seller for the sum of $10,000, of which amount $1,000 was made payable on the first day of January, 1922. The commission to be paid by defendant to said Carl for making the sale was the sum of $900, of which amount $170 was paid in cash and the agreement for the payment of the balance was represented by the following memorandum signed by the defendant:

“I hereby agree to pay to Fred W. Carl the sum of Seven Hundred and Thirty Dollars ($730) in full of commission on the sale of the property at 1717 N. Van. Ness Ave., Hollywood, Calif., the same to be paid out of the $1,000 payment to be made to me by the purchaser on Jan. 1st, 1922.”

The evidence disclosed the further facts that before the first day of January, 1922, the purchaser became insolvent; that the $1,000 mentioned in the foregoing agreement was not paid on January 1, 1922, but that two days later defendant entered into an agreement with the purchaser of the property to accept from him in the name of a daughter of defendant a quitclaim deed to the property, and that some time thereafter defendant filed a full satisfaction and release of said trust deed. Because of the fact that the purchaser of the property failed to pay the $1,000 which became due on January 1, 1922, defendant refused to pay the balance of the commission in accordance with the provisions of the agreement hereinbefore set forth. On such facts judgment was" ordered in favor of plaintiff, and defendant has appealed therefrom to this court.

[358]

The ordinary rule is that one who voluntarily prevents the performance of some act upon which an obligation depends will be precluded from setting up such nonperformance as a defense.

In volume 13, page 647, of Corpus Juris, the principle is laid down that “a party to a contract cannot'take advantage of his own act or omission to escape liability thereon”; and in the same volume, at page 648, it is stated that “where he prevents the fulfillment of a condition precedent or its performance by the adverse party, he cannot rely on such condition to defeat his liability.”