Hiss v. Mulholland

CRAIL, J.,

pro

tem.

This appeal is from a judgment in favor of the plaintiff in an action for the recovery of a commission alleged to be due under an agreement between plaintiff and the defendants, involving also an option for the sale of the defendants’ real property. The defendants on February 29, 1924, for a consideration of $200 in hand paid, executed a written agreement whereby they gave the plaintiff the exclusive right or option until March 10, 1924, to purchase their property. The agreement further provided that it should inure to the benefit of the assigns of the second party, and provided for a broker’s commission as follows: “First party agrees to pay B. H. Hiss as commission in the event of the exercise of the option five (5%) per cent of the total purchase price to be paid through and at the close of the escrow.” The plaintiff, on March 3, 1924, assigned the foregoing option to one J. J. 0 ’Regan, reserving to himself the commission to become due in the event of the exercise of the option, and according to the testimony of plaintiff this was before the tender of a letter from defendants to plaintiff, which is set out in abbreviated form as follows:

“March 3, 1924.

“I hand you herewith my check for $200, being the amount you handed me on February 29, 1924, in connection with the document signed by me and my wife and I hereby cancel and terminate the relation created at the time of the signing of said document. I do not intend to sell the property and your authority to find a purchaser is hereby terminated and cancelled. I likewise rescind said document. I would not care to sell the property for the reason that I feel it is worth much more than $18,000, and inasmuch as you took this document in the form you prepared it but for the purpose of finding a purchaser, I feel you have no right as optionee or as agent now to find a purchaser. I will not .transfer the property.”

Within- the time specified in the option J. J. O’Regan notified defendants of his election to purchase the property pursuant to the terms of the option and deposited the

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purchase price in escrow as therein required, but defendants refused to proceed. Thereupon this action was commenced. The defendants filed an answer in which, after denying several allegations of the complaint, they set up a special defense, as follows: That on February 29, 1924, while plaintiff became and was the agent of defendants as aforesaid, plaintiff induced the defendants to execute said option at the sale price of $18,000, whereas at the time the property was worth $30,000, of which fact defendants were not aware until the 2d or 3d of March, 1924; that thereupon they inquired of plaintiff if he had taken any steps to exercise the option, who said that he had not and that he had not found a purchaser; that thereupon defendants rescinded the option, giving the plaintiff the letter above set out; that the agency created by said option was for no definite period of time and that they terminated it before plaintiff exercised it or found a purchaser; that the option and the contract for a five per cent commission were not severable. There was another affirmative and separate defense set out in paragraph V of defendants’ answer, but the trial court found against the defendants on all the allegations set up in said paragraph.