Mitchell v. Green

MARKS, J.

This is an appeal from a judgment entered in the court below, following an order sustaining respondents’ general demurrers to appellant’s third amended complaint without leave to amend.

The following facts are alleged in the third amended complaint. Appellant at all times material to this action was a real estate broker duly licensed under the laws of the state of California. Respondents were the owners of approximately ninety-eight acres of land in Riverside County, together with personal property, water rights and water stock. Thomas De Vries was the owner of about eight acres of land in Santa Barbara County.

On November 16, 1921, respondent Green gave appellant the following instrument:

“Nov. 16th

“My dear Mrs. Mitchell—

“You are herewith authorized to sell my property situated in Riverside, consisting of approximately ninety-eight acres (55+acres oranges; 5-¡-acres apricots and peaches, balance hay land but majority susceptible to planting to trees), including all water stock (Gage Canal), farm implements, tractor, tools, etc. for the sum of $110,000; for which services in the event of sale I will pay you fifteen per cent commission on above amount.

“Yours truly,

“A. M. Green.”

[261]

On October 21st, Green had given to appellant another listing of the same property in which he guaranteed that there was an orange crop maturing upon it that would bring a minimum price of $25,000.

Immediately after November 16, 1921, appellant procured and introduced Thomas De Vries to Green as a purchaser ready, willing and able to purchase the Riverside properties of respondents. The negotiations culminated in a contract bearing date the eighth day of December, 1921, whereby respondents agreed to exchange their Riverside properties for the Santa Barbara property of De Vries. For the purpose of the exchange respondents’ property was given a value of $110,000, and De Vries’ property of $47,500. The difference in values was to be paid to respondents as follows: By the assumption by De Vries of a $25,000 encumbrance upon the Riverside property and the payment of $37,500 to be made by De Vries and wife to respondents evidenced by three promissory notes secured by deed of trust. The first note was in the principal sum of $12,500 payable on or before July 1, 1923; the second for $15,000 payable on or before July 1, 1924, and the third for $10,000 payable on or before July 1, 1925. All the notes bore interest at the rate of seven per cent per annum and payable semi-annually. The agreement recited that the Santa Barbara property was encumbered by a mortgage securing a promissory note in the sum of $12,000 which De Vries agreed to pay on or before January 1, 1922. Title to the Santa Barbara property was to be free and clear of encumbrances except the second installment of taxes for the fiscal year 1921-1922, and rights of way, easements, reservations and building restrictions of record and a lease of the residence on the property which was to be assigned to respondents. It appears from this contract that the exchange was to be completed by January 1, 1922.