Hidy v. Morton

[629]

BARNARD, J.

This is an action by a real estate broker for a commission. On September 19, 1927, the defendant signed a written proposition to exchange a piece of real property owned by him in San Diego upon certain stated terms, for another piece of real property in San Diego owned by W. B. Tyrrell. This instrument contained a provision authorizing the plaintiff herein to act as agent in negotiating said exchange, agreeing to complete the deal if said agent secured an acceptance of the proposition and further agreeing to pay the agent the sum of one thousand dollars as a commission for his services, when such an acceptance was secured. It was further agreed that a failure on the part of defendant to fulfill the agreement should not release him from the payment of the commission. Attached to this proposal was an acceptance of the proposition, prepared for the signature of the other party, Tyrrell. During the next day the plaintiff secured the consent of Tyrrell to the proposition, and obtained his signature to the attached acceptance. That same day the plaintiff told the defendant over the phone that he had secured this acceptance, and no objection being made by the defendant, an appointment was made to meet the next morning at the office of a title company. At this meeting defendant asked to see the agreement. Upon being handed the same, he glanced over it, crumpled it up and shoved it into his pocket, saying he was not going to complete the deal at that time; that he did not like the tenant in the property he was getting; but that he might make the deal later on. The deal not being made, plaintiff demanded his commission, and this action followed. Judgment went for the plaintiff and the defendant has appealed.

The only point raised by appellant is that the several findings of the court are not sustained by the evidence; all of these specifications of error being based upon one proposition, which apparently was the only defense raised at the trial, namely, the contention that the agreement and proposition of exchange was never delivered to the respondent by the appellant. The record shows that appellant testified that when he signed the agreement the respondent picked it up and kept it two days; that at the time respondent took possession of the contract he did so without the witness’

[630]