Westergard v. Baker

This is an appeal from a judgment for plaintiff in an action for a broker's commission under a contract reading as follows:

"Los Angeles, California, September 7th, 1926. "Commission Agreement.

"Whereas P. Westergard, Realty Broker is negotiating a tenant for a Ninety-nine year Lease on Lots 8-9 and 10, Spence Tract, Wicks addition, owned by H.C. Tucker, F.G. Baker and G.W. Baker, it is hereby agreed that Mr. Westergard will accept $1,800 as Commission, if deal is consummated, Commission to be paid as follows: $450.00 per Month starting when said transaction is completed and Papers come out of escrow.

"Signed FRANK G. BAKER. "Signed H.C. TUCKER.

"Agreed to "P. WESTERGARD."

The defendants and one G.W. Baker were the owners of a certain parcel of real property in the city of Los Angeles. Whittier Boulevard Pools, Inc., were desirous of securing *Page 703 a location for the construction of a swimming pool, and consulted P. Westergard, the plaintiff, a real estate broker, who in turn got in touch with defendants, and a lease was entered into between them and Whittier Boulevard Pools, Inc. The trial court found that the lease was executed "on or about" September 8, 1926. The lessee paid six months' rent in advance and started excavating, but before its completion, abandoned the project. Subsequent to the taking of this appeal the executrix of the plaintiff was substituted as plaintiff and respondent herein.

[1] Appellant's basic contention is that the finding of the court that the lease was executed after the commission agreement is not supported by the evidence. Both appellant and respondent assert that the date of the execution of the lease and whether it was before or after the execution of the commission agreement are of vital importance and largely determinative as to the rule of law applicable to the case. Appellant's counsel asserts that there is "not one iota" of evidence to show that the lease was signed subsequent to the agreement, while respondent declares that not only did the proof show that the lease was executed after the agreement, but also that the case was tried upon that theory. The answer to the complaint refers to the agreement as one for a commission "to be paid upon the consummation of a deal for the leasing of said lots . . . upon the condition that the plaintiff would obtain a tenant who would sign a lease for said premises", a concession that the lease was signed after the commission agreement, and at the outset of the trial we find counsel for plaintiff and respondent offering to stipulate that the lease was executed on the same date as the agreement, an offer which, however, was not accepted by appellant. Though the lease was in court and in the hands of the trial judge, who directly inquired whether it was the desire of counsel to put it in evidence, this important document was neither received nor offered as an exhibit. There is in the record testimony that the lease was executed "on or about" September 7, 1926, and there is testimony that it was executed "on or about" September 8, 1926; there is testimony from which the inference may be drawn that the agreement came first and other testimony that the lease was the first of the documents to be executed, but we have not been *Page 704 referred to, nor have we found any testimony as to, the exact date of the execution of the lease.