Knox v. Modern Garage & Repair Shop

California Court of Appeal Sep 6, 1924 No. Civ. No. 4503.Published

Before: Tyler

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Holding. The court held that the broker's contract remained in full force and effect at the time of the sale because the defendants failed to provide the required written notice of termination, and there was no evidence of a mutual agreement to rescind the contract.

Issues

Whether the evidence supports the trial court's finding that the parties mutually rescinded the broker's contract.
Whether a party can avoid liability under a written contract by claiming they did not read or understand its terms regarding termination.

Disposition. reversed

Quotations verified verbatim against the opinion

“There is no evidence to show that there was ever any mutual agreement to terminate the contract.”

“The contract, therefore, was in full force and effect at the time the sale was made.”

“In such an action a party cannot be heard to say that he had not read the same and did not know the contents thereof.”

TYLER, P. J.

Action upon a broker’s contract to recover the sum of $500 provided for therein as a commission for the sale of a certain garage.

The contract reads as follows:

“San Francisco, Cal., Mar. 3, 1922.

“Service Investment Co.,

“For value received and in consideration of services to he performed by you, I hereby employ and authorize you as my agent to sell for me my garage business known as Modern

[585]

Garage located at 740 Valencia. Lease 4½ years.Q Rent per month $225. Price asked $6,500.00 Cash or terms—cash.

“In consideration of your offering my property for sale and listing same on your records I agree to pay you at your office at San Francisco, Calif., in the event of a sale, transfer or exchange of said property, or any part thereof, either by you or by me or by any other person while this contract is in force, as commission for said services the sum of $500:00, whatever the selling price may be, and the same commission if sold thereafter to anyone sent by you, or who has received information directly or indirectly through your office. This employment and authorization shall continue irrevocably for the full period of ten days from the date hereof, and shall continue thereafter until this authority is revoked by me by giving a ten days’ notice in writing, to be sent by registered mail or delivered personally at your office. In case this contract is canceled before my property is sold I agree to reimburse you for the amount advanced by you in advertising my property but not to exceed one percent of the price asked.

((

“(signed) Modern Garage & Repair Shop,

“H. H. Bbhlmer, Jr.

“Accepted this 3rd day of March, 1922,

“ (signed) Service Investment Co. by Chas. H. Land, Jr.’’

The complaint in substance alleges defendants to- be partners doing business under the name of “Modem Garage and Repair Shop,” and charges that such defendants, after the execution of the contract with the Service Investment Co. and while the same was in full force and effect, themselves sold and transferred the said garage business to certain purchasers, and that by reason thereof the commission provided for immediately became due and payable to- said Service Investment Co. Then follows an allegation of the assignment by said company of all its rights under the contract to- plaintiff, and a prayer for the amount of the commission.

Knox v. Modern Garage & Repair Shop

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TYLER, P. J.

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