Wright & Kimbrough v. Dewees

NOURSE, J.

Defendants appeal from a judgment rendered against them in the sum of $600 for commissions, with interest and costs. The action arises out of a contract for the sale of real estate between defendants, the owners, and plaintiff, a -corporation engaged in the real estate business, and containing, among others, the following provision: “The said ‘seller’ agrees should a sale or exchange of said above described property upon said or any satisfactory terms be effected during the period of time hereinafter named, by either party to this agreement, or any other party, or after determination of this contract, if sold to a párty to whose attention said property was brought through the agency of the said ‘agent,’ that the said ‘agent’ shall receive out of the first payment made on said property five -per cent of the price for which said property was sold as a commission for promoting said sale.” The contract, dated January 7, 1916, was for sixty days and thereafter until the expiration of ten days’ written notice, and the price named therein was $18,000

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cash. After the termination of the contract defendants personally sold the property to one Mull.

The question here presented is the proper construction of the above clause. There is no substantial conflict in the evidence. It appears that Mr. Mull and his wife were well acquainted with the property, defendants’ residence located in Sacramento, before plaintiff entered into the situation. More than a year before defendants contracted with plaintiff for its sale the Mulls were looking at other property in the neighborhood, with the object of buying, and defendants at that time talked to Mr. Mull and endeavored to sell their home to him. Thereafter the Mulls frequently looked at the property from the outside of the house and talked with defendants about it, the last conversation occurring just prior to contracting with plaintiff. No offer, however, was made to defendants as a result of these conversations. When plaintiff interviewed the Mulls regarding the property, they told him they knew it was for sale. Defendants also told plaintiff, after the contract was signed, that the Mulls were interested in the property and were good prospects. Plaintiff ■ likewise was unsuccessful in obtaining an offer from the Mulls, although he took them to see the property once or twice, being the first to show them the interior of the house, and endeavored to sell it to them. Mr. Wright, plaintiff’s representative in this matter, then reported to defendants that the Mulls were no longer interested in the property and to forget about them as prospective purchasers, that he had seen plans which they had prepared for a home which they intended building. Thereafter and on March 31, 1916, defendants served upon plaintiff written notice of cancellation of the contract as therein provided, no sale having been made, and no offer whatever having been obtained from Mr. Mull. About a month later plaintiff solicited a new contract of sale from defendants, which they refused. The matter was dropped, so far as the Mulls were concerned, until several months later, when negotiations were entered into between Mull and defendants, as the court found, without fraud as to plaintiff. In January, 1917, about nine months after the contract was canceled, and after plaintiff had ceased all negotiations in the matter, Mull offered defendants $12,000, for which defendants sold