MacKnight v. Davitt

THE COURT.

In this action to recover a commission claimed to have been earned for securing the acceptance of an offer to exchange real property, the trial court gave judgment for the plaintiff, from which judgment defendant appeals.

On the twenty-seventh day of February, 1917, plaintiff and defendant entered into a written agreement in which defendant represented himself as the owner of certain property on Eddy Street, in San Francisco, and appointed plaintiff his agent to act in negotiating an exchange of that property for certain other property on Oak Street, both properties being described in the agreement, and defendant agreed to pay plaintiff the sum of $375 as commission when he secured an acceptance of the proposition to exchange the said property. The trial court found that plaintiff had secured an acceptance in accordance with the terms of the contract and that defendant had failed to perform his part of the agreement, and accordingly gave judgment for the plaintiff.

It is contended that the trial court erred in permitting the plaintiff to remedy by oral testimony a defective description of the property in the contract. In a contract to employ a broker to sell or exchange real estate a defective description of land can be cured by parol evidence.

(Proulx

v.

Sacramento Valley etc. Co.,

19 Cal. App. 529, 534, [126 Pac. 509].) Much greater liberality is allowed in construing and curing defective descriptions in broker’s contracts than in a deed of grant of land, for, so far as the statute of frauds is concerned, the terms of the employment are the essential part,

[722]

and such contracts will not be declared void merely because of a defect, uncertainty, or ambiguity in the description of the property to be sold or exchanged when such defect can be cured by the allegation or proof of extrinsic facts and circumstances.

(Maze

v.

Gordon,

96. Cal. 61, [30 Pac. 962];