Moellering v. Haskins

[150]

KERRIGAN, J.

This appeal is from an order made in a probate proceeding fixing the amount of commissions to be paid to certain real estate agents for the sale of real property belonging to the estate.

The executor of the will of Peter Seng, deceased, employed the appellants Moellering

&

Goodwin, and also the respondent Haskins, all of whom were real estate agents, to effect the sale. The contract was entered into in conformity with the provisions of section 1559 of the Code of Civil Procedure. The respondent Haskins procured certain purchasers for the property for the sum of seven thousand dollars. The bid of these purchasers was duly returned to the court, but before the hearing on confirmation appellants also procured a purchaser. The bid of this proposed purchaser, was received too late to be returned, but at the hearing in open court he offered an increase of ten per cent over the returned bid, whereupon the sale was confirmed to him for the sum of seven thousand seven hundred dollars. The court thereupon found that five per cent upon the purchase price secured for the property was a reasonable and proper amount to be allowed as a commission, and made the order, here appealed from, dividing such commissions on the sale between appellants and respondent, by giving to the respondent who procured the first bidder five per cent on the sum of seven thousand dollars, the amount of his bid, and .giving to appellants, who procured the second (and successful) bidder, five per cent on seven hundred dollars, the additional amount procured.

It is the contention of the appellants that under the provisions of section 1559 of the Code of Civil Procedure, respondent is not entitled to the sum allowed him, or to any commission, but that appellants are entitled to the whole thereof.

Section 1559 of the Code of Civil Procedure reads as follows: “Any executor or administrator may enter into a contract with any

bona fide

real estate agent to secure a purchaser for any real property belonging to an estate, which contract shall provide for payment to such agent out of the proceeds of sale to any purchaser secured by him of a commission the amount of which must be fixed and allowed by the court upon confirmation of the sale. If a sale to a purchaser obtained by such agent is returned to the court