Sobaje v. Schubert

CHIPMAN, P. J.

The action is for the recovery of $650 as commissions for procuring a purchaser of certain real property. The cause was tried by the court without a jury and plaintiffs had judgment for the amount claimed by them. The appeal is from this judgment and is here on a bill of exceptions.

It is alleged in the complaint that plaintiffs are copartners under the firm name of New England Real Estate and Insurance Company; that, on or about April 15, 1916, plaintiffs “entered into the service of the defendant, P. M. Schubert, at his special instance and request as his agents to sell and dispose of the following described real property [describing it]

. . . for the sum of thirteen thousand dollars, payable at the times and upon the terms and conditions agreed to and suggested by the said defendant; for which services defendant agreed in writing to pay plaintiffs therefor the sum of five per cent as comjmission on the said sum of thirteen thousand dollars, such commission amounting to $650”; that plaintiffs did, on or about April 20, 1916, ‘ ‘ procure a purchaser for the defendant’s said lands, who was then and there ready, willing, and able to complete the purchase of the defendant’s said real property upon the terms and conditions fixed and agreed to by the defendant with plaintiffs herein, by bringing together the said intended purchaser and the defendant and procuring from the said intended purchaser a written offer to purchase the said lands to and for defendant herein; which offer to purchase the defendant, on or about the twenty-third day of April, 1916, . . . did then and there accept and agree to make the sale”; that defendant, though often demanded to

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do so, has failed and refused, and still refuses, to consummate said sale; that plaintiffs have performed all the conditions in said contract on their part to be performed.

The answer is a specific denial of the averments of the complaint. As further answer defendant sets forth a written agreement, of date April 15, 1916, signed by defendant, by which he agreed to pay to plaintiffs a commission of five per cent for effecting a sale of said land, the sale price being thirteen thousand dollars, to be paid, five hundred dollars cash and the balance in installments as set forth. This appeared to be the agreement referred to in plaintiff’s complaint on which they rely. The answer then sets out what purports to be a proposal, made on or about April 23, 1916, by John Boornutian, the purchaser referred to in plaintiffs’ complaint, to purchase said land upon terms and conditions fully set out, the price to be paid being the same as stated in defendant’s agreement of April 15, 1916, but including some provisions not found in that agreement. This proposal was directed “to P. M. Schubert, P. O. Box No. 87, Madera, Calif.” It is alleged that "defendant then and there accepted by indorsing his acceptance upon said agreement aforesaid”; that subsequently said Boornutian offered to pay defendant five hundred dollars, but did not offer any written contract for the sale of said land; that defendant “is ready and willing to carry out the terms of said contract with said Boornutian, provided the said Boornutian will pay the said sum of five hundred dollars and enter into a contract containing the usual covenants and restrictions usually contained in contracts for the sale of real estate but without giving or conferring upon the said Boornutian the right of possession except for the purposes mentioned in said agreement, ’ ’ which were for planting and cultivating trees and vines, etc.