Traxler v. Katz

California Court of Appeal Aug 21, 1931 No. Docket No. 7769.Published

Before: Sturtevant

AI Brief

AI-generated · verify before citing

Holding. The court held that a real estate broker is entitled to recover commissions from a party who prevented the consummation of an exchange agreement, including the commissions the other party would have paid, where the broker had secured a written acceptance and the failure to perform was due to the defendant's testator.

Issues

Whether a broker's failure to sign a written exchange agreement precludes recovery of commissions.
Whether a slight property title overlap constitutes a material defect sufficient to excuse performance.
Whether a broker may recover damages equal to the commissions promised by both parties when one party prevents the consummation of the exchange.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The contention that there was no agreement of employment of Traxler rests on the fact that he did not sign the written instrument. That fact is not determinative.”

“The courts will treat the slight overlapping as de minimus”

“It follows that if this action had been brought against Mr. McLeran in his lifetime the amount of the damages should have been ascertained as claimed by the plaintiff.”

STURTEVANT, J.

The plaintiff sued to recover broker’s commissions alleged to be due and owing to him from the defendant’s testator. The defendant asserts that there is no testimony to support the finding that the plaintiff performed the contract under which he claims relief. She also asserts that there was no agreement employing the plaintiff. And she further asserts that the purported agree

[228]

ment was one of exchange and that there was found to be a material defect in the title to Ehrlich’s property which was not removed and therefore no commission was earned. These several contentions we think may best be treated together.

On January 16, 1928, defendant’s testator executed an instrument agreeing to exchange three several parcels of land together with $15,000 in cash- for ■ a parcel on the west line of Mission Street which was entirely covered by buildings. The writing included, among others, these passages:

“Henry H. Traxler is hereby constituted my agent to negotiate this exchange and two days are allowed him to secure written acceptance hereof.

“15 days from the date of acceptance shall be allowed for search of titles and consummation, unless one or both titles are found to be defective. In the latter event the party or parties whose title is defective shall be allowed 60 days additional, after receipt by Henry H. Traxler of written notice of objections to title, within which to remedy defects.

“At the conclusion of 60 days, or before, if both titles are sooner made acceptable, this exchange shall be finally consummated in the office of Henry H. Traxler by each party delivering to the other all payments and instruments in writing required to comply with the terms specified and particularly to vest in each by grant, bargain and sale deed good merchantable title to all of the real property that is to go from one to the other under this agreement. ... It is further agreed with the said agent that when he has secured an acceptance in writing of the above proposition that I will then pay to said agent at his office in San Francisco, the sum of one thousand and no/100 ($1,000.00) on demand for services rendered; and it is understood that said agent may also act as agent for the owner of the above secondly described property from whom he may also receive a commission. Time is of the essence hereof.

Traxler v. Katz

AI Brief

STURTEVANT, J.

More from California Court of Appeal

Related research

AI Brief