Humes v. Walker

STURTEVANT, J.

The plaintiff sued to recover broker’s commissions alleged to have been earned' in negotiating an exchange of tracts of real estate in Los Angeles County. The defendant answered and the action was heard before the trial court sitting without a jury. The court made findings in favor of the defendant and from the judgment entered thereon the plaintiff has appealed. On the trial of the case the plaintiff was called as a witness in his own behalf and produced a document which he claimed to be the contract of exchange. That document is quite long. It is unnecessary to quote it in full. It consists of an offer by the defendant to exchange her property, describing it, for other property, describing that. Among others, it contains passages as follows: “Unless this offer shall be accepted within five days of the date hereof by the due and legal execution of the acceptance in writing hereinunder appearing, and by the delivery of said executed acceptance to my agent hereinafter named, all within the time aforesaid, this offer shall thereupon immediately be and become revoked, null and void without notice ... I hereby appoint Tom Humes my agent irrevocably within the time above limited for the written acceptance of this offer to negotiate an acceptance of this offer on' the terms and conditions hereinafter specified and on no other terms and conditions ...” The offer of the defendant was signed by her. That portion

[601]

of the instrument was dated June 27, 1927. Below the foregoing document is an acceptance dated Los Angeles, California, July 9, 1927. The acceptance is also quite long. The last paragraph is as follows: “I hereby acknowledge delivery to me of the aforegoing offer to exchange and declare that this exchange agreement is now on my part in full force and effect,

subject to the approval of Seth B. Maupin."

The acceptance was signed by Anna Gish Kimball and C. G. Kimball. The defendant asserts that the words italicized being added after the defendant had signed and the defendant never consenting to the same constituted a conditional acceptance and therefore no acceptance at all. (Civ. Code, sec. 1585; 6 Cal. Jur., p. 62;

Cameron

v.