Sampson v. Draeger

PRESTON, J., pro tem.

This is an appeal by the defendant Otto Draeger from a judgment entered against him in the sum of $2,700, in an action to enforce specific of a contract for the sale of real estate.

The facts are not in dispute and can thus be briefly stated: Alex Kirkpatrick and others were the owners of 160 acres of land in Kern County, California, the title to which stood in the name of Kirkpatrick, as trustee. W. A. Sampson was a duly licensed real estate broker, residing near the land. On February 27, 1920, W. A. Sampson wrote a letter to Kirkpatrick, who resided in Los Angeles, California, and said in part: “I have good reason to believe that if you and your associates will promptly give me to sell the West half of Section 27, at $80.00 per acre, I can line up local parties to take the land on terms. . . . (Here follows terms.) In the event the is approved, and I line up responsible parties to take over the land and make improvements as stipulated, I will expect five per cent commission. ...” To this letter Kirkpatrick replied: “Replying to your favor of February 27th, in which you ask for authority to sell the West half of 27 on terms stated, will say we will sell on terms for you, viz.: A contract of sale for $80.00 per acre land clear. ...”

Kirkpatrick made no mention of the five per cent demanded by Sampson. There were no other between these parties, but Kirkpatrick later came to the land and talked the matter over with Mr. W. A. Sampson, and it was finally agreed that Sampson was to sell the land on the basis of $80 per acre net to Kirkpatrick, one-fourth to be cash. Pursuant to this arrangement, Mr. Sampson advertised all the lands belonging to Kirkpatrick

[107]

and his associates for sale at public auction. The auction sale was had, but this particular piece of land was not sold. Thereafter, and on or about March 22, 1920, defendant Otto Draeger and Sampson entered into negotiations relative to the purchase and sale of said land, which resulted in defendant agreeing to buy the land for $100 per acre and paying Sampson $500, and Sampson giving defendant a receipt in the words and figures as follows:

“Received,—Wasco, Cal. March 22, 1920, of Otto Draeger of Vacaville, Cal., check for Five Hundred Dollars on account and as first payment on purchase of 160 acres of the West half of Section 27, Township 27 South, Range 24 East, M. D. B.