Douglas v. Spangenberg

LENNON, P. J.

This is an appeal from the judgment and from an order denying a new trial.

The plaintiff had judgment against the defendant in the sum of $1,690, alleged to have been earned by the plaintiff as a broker’s commission in procuring a purchaser for certain real estate belonging to the defendant.

The facts in the case as revealed by the pleadings and proof are substantially these :

On December 5, 1910, the defendant, by an instrument in writing, authorized the plaintiff to offer for sale a tract of land in Tehama County containing three hundred and forty acres. By the terms of the authorization the plaintiff was empowered to offer the entire tract for sale at $52.50 per acre, upon the express condition that “not less than seven thousand five hundred dollars cash in United States gold coin” should be paid down, and the “balance as may be mutually agreed upon.”

The complaint proceeded upon the theory that plaintiff had procured a purchaser for defendant’s lands at fifty-five dollars per acre, who was ready, willing, and able to buy, and who, as an evidence of good faith, had deposited with the plaintiff the sum of one thousand dollars in cash as the first payment on account of the purchase price. The complaint further alleged that the plaintiff had reported to defendant the procurement of this particular purchaser and the payment of one thousand dollars in cash, and that the defendant in writing had approved the acceptance by plaintiff of the one thousand

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dollars cash deposit, and ratified in writing the other terms and conditions of the sale, notwithstanding that they were at variance with the terms and conditions of sale specified in the original authorization.

The trial court found as a fact that the plaintiff had sold the defendant’s lands at the price of fifty-five dollars per acre to a prospective purchaser, who had paid one thousand dollars on account of the purchase price, and that such purchaser was ready, able, and willing to complete the purchase upon the terms proposed by plaintiff and assented to in writing by the defendant. The insufficiency of the evidence to justify this finding is one of the grounds for defendant’s motion for a new trial, and is now urged as a reason for reversing the judgment. In this behalf it is the defendant’s contention that plaintiff’s evidence fails to show, as plaintiff alleged, that he had procured a purchaser for defendant’s lands who was-ready, able, and willing to purchase them upon the terms originally proposed by the defendant, or upon other and different terms proposed by the plaintiff and which were subsequently accepted and ratified in writing by the defendant.