Vickery v. Valdez

ARCHBALD, J.,

pro tem.

This is an appeal by the defendants from a judgment for $1250, interest and costs in favor of plaintiff.

Plaintiff, acting as real estate broker, obtained a written offer from one Fannie M. Koenigstein to exchange an equity in a certain described property belonging to her for certain property owned by the defendants, known as 1606 East Broadway, Glendale, California. The offer was dated August 17, 1927, and provided that it should be void if not accepted “before 12 o’clock noon, Monday, August 22nd, 1927”. The following acceptance, written in purple ink and signed by both defendants, appears under the offer: “I accept the above offer with the following changes 1st that I am able to get a first loan of $10,000 to $11,500 at 8% for five yrs.—

2th

that central ave. lot equity is to be 6000.00 as 1st pay

ment—3th

that buyer will make payments of $75.00 or more per mo. including Int. 8%. I include furniture in 1604% as is except I will add set of dishes, and change dining set. I also agree to pay W. T. Vickery $1250.00 as my part of the commission for services rendered. Buyer to assume light assess on 1606.” On the right-hand margin of the contract, written in purple ink, is the following: “Possession of property at 1606 E. Bdy. to be given on or before Sept. 12th, 1927.” Under this are the initials of both defendants and Fannie M. Koeningstein. The offer provided also that possession was to be given September 1, 1927. On the left-hand margin of the contract, written in green

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ink, is the following, signed by Fannie M. Koenigstein: “8/24/27 I accept the following changes”.

Plaintiff testified that he told defendants he would help them get a loan for from $10,000 to $11,500, and took a signed application from defendant L. B. Valdez, which was turned into the C. E. Kimlin Company, who in turn presented it to the National Mortgage Company, which latter organization advised that the application was approved for a loan of $10,000. It was testified that the rate of interest was eight per cent, with a commission of five per cent for obtaining the loan. Plaintiff also testified that defendant L. B. Valdez objected to paying a commission of five per cent and stated that he had a friend whom “he was certain would make a loan and that he could save on that”. The defendant L. B. Valdez testified, with regard to obtaining the loan, that he spoke to a Mr. Hutchinson about obtaining it but did not make an application to him, “because I told him that I wanted the loan then and he was satisfied that he could take care of it”. He also said that when the plaintiff told him he would get him a loan “at that price why I told him that I didn't want to bother with that loan with him because I could, I says, ‘I can get a loan myself at that price. ’ ” Defendant L. B. Valdez also testified that the written offer was brought to him and signed by him after 12 o’clock noon on August 22d, and both defendants testified that they did not know that Mrs. Koenigstein had accepted the conditions imposed by their acceptance until the time of trial. Plaintiff, however, testified that he told them about it the next day after Mrs. Koenigstein approved the changes made by them.