C. L. Glover Co. v. Farinacci

GRAY, J.,

pro tem.

Appellant, a real estate broker, sought to recover an agreed commission for negotiating an agreement for the exchange of respondent’s property for

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a building which consisted, of five stores on the ground floor and apartments on the two upper floors and upon which Jim T. Sanderson, the other party to the exchange, then held an option. The judgment, denying such recovery, was predicated in part upon the court’s determination that the execution of the commission agreement was solely induced by the mutual mistake of the parties thereto as to the rentals received from the Sanderson property. Appellant attacks the judgment upon the ground that the evidence does not support the findings embodying such determination.

The evidence upon this matter consists mainly of the testimony of respondent and appellant’s salesman, which as to all material facts, is in accord. This salesman, in submitting Sanderson’s property to respondent, gave to the latter a schedule of rents which he stated had been received from Sanderson’s agent as true. This schedule represented that one store was leased for five years at a monthly rental of $202; one store was rented on a monthly tenancy at $75 per month; two stores on a monthly tenancy at $50 each per month and one store on a monthly tenancy at $100 per month, and the apartments were leased for five years at a monthly rental of $530, secured by a chattel mortgage. Respondent, once alone, and once in the salesman’s company, inspected the Sanderson property. On the second occasion, either respondent or the salesman (their testimony differing immaterially in this detail) inquired of the tenants in the two stores and the apartments as to the rents paid and were given the same figures as shown by the schedule. Thereafter the salesman delivered to respondent Sanderson’s written offer to exchange and the next day respondent simultaneously delivered to the salesman his written acceptance of this offer and executed the commission agreement. About two weeks later, while the deal.was in escrow, respondent, upon interviewing the tenants as to prospective leases, learned that the apartments were not leased but were operated by the owner of the property and that rebates of five dollars per month were being given by the owner to the month to month tenants of four stores. When respondent called this discrepancy to Sanderson’s attention, the latter offered to execute a two-year lease, secured by a chattel mortgage, on the apartments but respondent refused this offer. San