Troendle v. Clinch

TAPPAAN, J.,

pro

tem.

Plaintiff and respondent here recovered a judgment as against defendants and appellants, Clinch and Thurtle, real estate brokers and copartners, and one Donnell, the mother-in-law of defendant Clinch. No judgment was had as against defendant Weadon.

The evidence as presented upon this appeal discloses the following facts. Plaintiff for some years prior to the transactions here involved was the owner of a certain house and lot in the city of Los Angeles and had attempted to sell or trade the same. She had at different times listed this property with various real estate agents for sale. Plaintiff was directed to defendants Clinch and Thurtle by a real estate firm with whom she had had some business transaction, some time between the 1st and 10th of April, 1927. On April 12, 1927, defendant Clinch first learned that a fifty-year lease of certain property situated upon Western Avenue in the city of Los Angeles could be secured for the sum of $6,500, though Clinch did not succeed in contacting the owner of this lease until April 19, 1927. On April 12, 1927, the day he first learned that the Western Avenue lease could be purchased, defendant Clinch called plaintiff to his office and informed her that a very rich man, who had been recently married, wished to purchase a nice home; that this man specialized in leases and wished to trade for a home a lease he had upon Western

Avenue;

that this lease could be exchanged for her property. Plaintiff told defendant Clinch at this time, and at subsequent interviews, that she would have to rely upon him to advise her in the matter of the exchange. On April 14th defendant Clinch brought defendants Weadon and Donnell to plaintiff’s home and introduced them to her as Mr. and Mrs. Weadon, and showed them the house and told plaintiff that Weadon

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was the owner of the Western Avenue lease he had told her about. The next day Clinch told plaintiff he was mistaken about Weadon being married, but that he was engaged to Mrs. Donnell. On April 22d Clinch secured a listing of the Western Avenue lease from the owner at the stated price of $6,500. On the same day, April 22d, Clinch told plaintiff that Weadon was willing to make the exchange. On April 23d at Clinch’s direction plaintiff made from other persons inquiries as to the value of the lease, but was informed by them that they knew nothing as to its value and that she would have to rely upon her agent, Clinch, as to the exchange. Of this fact she informed Clinch. In the afternoon of the same day, at defendants Clinch and Thurtie’s office, there being present defendant Clinch, plaintiff and another agent who took no important part in the transaction, the exchange agreement was signed by plaintiff. Clinch read parts of the agreement to plaintiff, but, it would appear, plaintiff never read, nor, was the whole agreement read to her, at this time. The agreement was the usual form of exchange agreement and called for the exchange of plaintiff’s property for the lease. Defendant Clinch never informed plaintiff of the true value of the lease or who was the true owner, and at all times represented to her that it was of the value of $35,000, which was the valuation plaintiff placed upon her property. Clinch told plaintiff that Weadon was the owner of the lease. It is true that defendant Clinch in his testimony denied many of the statements made by plaintiff as to the transaction, though the testimony of the other witnesses who testified at the trial did not, as to the material parts of her testimony, tend to contradict her testimony. At the time of the signing of the exchange agreement plaintiff and the other agent present at the time testified that Clinch borrowed from plaintiff the sum of $2',850 and agreed to return to her $3,000 at the close of the escrow. Defendant Clinch testified that this sum was merely deposited as a proof of good faith on the part of plaintiff and that the sum of $150 returned to her in the escrow in-addition to the $2,850 was in fact a reduction of his commission.