K. Lundeen Corp. v. Barlow

TAPPAAN, J.,

pro tem.

In this action plaintiff seeks to recover for broker’s commissions upon the exchange of real estate. Defendant had judgment below and plaintiff appeals. The cause of action as alleged in the complaint is based upon the terms of a certain exchange agreement entered into between defendant and one Jacobberger, and the commission claimed is that fixed in this agreement. The answer sets up the exchange agreement

in Jiaeo verba

and then alleges fraud on the part of Jacobberger as to the terms of the mortgage upon the property he sought to exchange. There are also alleged in defense, a release, that agreement is without consideration, a failure of consideration, and a release of a part of the amount claimed. From the findings it would appear that the judgment was predicated upon the theory of fraud, and a resulting rescission of the agreement of exchange.

Plaintiff’s first contention is that the court’s findings, as to fraud, are wholly unsupported by the evidence. From an examination of the record, it appears that there is sufficient evidence to support all material findings of the court.

The negotiations preceding the signing of the exchange agreement were held in the office of plaintiff, where defendant had desk room, and covered a period of some six or eight weeks. Defendant testifies that Jacobberger informed him that the mortgage upon the farm he wished to exchange, had three years to run. Lundeen, who was present during some of the conversations, says that Jacobberger stated that the mortgage had at least two or three more years to go. Jacobberger’s version is that he said the mortgage was one for five years and had run over three. That at the time the exchange agreement was signed by the parties, a question as to the date of the mortgage arose and that

[393]

Jacobberger said he did not know the exact date but it was over a year. Plaintiff, the agent, suggested that the words “as of record” be used, which was done. Defendant thereafter signed escrow instructions specifying that the mortgage should be “due approximately three years after this date”. This part of the instructions was, thereafter, at the request of plaintiff, modified to read two years. The mortgage in fact had only fourteen months to run at the time of the signing of the agreement, and defendant had notice of this fact for the first time when he read the abstract furnished by Jacobberger in the escrow. Defendant upon discovering this fact promptly notified Jacobberger that he declined to go forward with the transaction. Jacobberger then requested defendant to sign an instruction providing for the return of $3,500 he had caused to be deposited in the escrow. This instruction, as presented to defendant contained a clause agreeing to redeposit the money when the escrow-holder “is in a position to comply with her original instructions as thereafter amended”. Defendant struck out this clause and Jacobberger, making use of the instruction as so modified, withdrew the money from escrow, and notified the escrow-holder not to deliver a note in the escrow to plaintiff. At a later date Jacobberger notified defendant that he had made no representation that the mortgage had two years or more to run and demanded, that defendant complete the exchange. Taken in a light most favorable to plaintiff, the testimony ^presents a substantial conflict, and upon appeal the findings will not be disturbed.