Stewart v. Bowie

[753]

KERRIGAN, J.

This is an action to recover a commission on the sale of real estate. Judgment went for the defendant and plaintiff appeals.

Briefly, the facts of the case are these: On November 26, 1916, the defendant in writing appointed plaintiff’s assignor, Lyon & Hoag, a corporation, his exclusive agent for the period of twenty days to sell his home, situate in San Mateo County, for eighty thousand dollars, said agent to receive a commission of five per cent in the event that it effected a sale under said authorization. On the following day the agent secured from one Ralston Wilbur an offer in writing to purchase said property for the sum of sixty thousand dollars, payable six thousand dollars cash in hand, and the balance in sixty days, or upon completion of the examination of title, the sale to be consummated in the office of the agent. This written offer was accepted by defendant by indorsing thereon the words: “I hereby approve the sale of the within described property, and agree to pay Lyon & Hoag on demand the sum of $1,500 for their services.” The defendant performed his part of the agreement, and also extended the purchaser’s time a period of sixty days in which to make payment of said balance; the title to the property was good; a deed conveying it. was duly prepared and was ready for tender and delivery to the vendee at the time and place appointed for the consummation of the transaction, but the vendee failed to perform his part of the agreement, and paid nothing further than the amount accompanying his offer to purchase.

[1]

Unless there is a provision in the contract to the contrary, a real estate broker, employed to negotiate a sale of land, earns his commission and it is payable when he produces, within the time allowed, a purchaser who is ready, willing, and able to take the property on the terms prescribed, or with whom the owner enters into a contract upon those or other terms satisfactory to him, and the broker cannot be deprived of the agreed compensation because deferred payments are not made by the purchaser, or other terms of the contract not carried out.

(Gunn

v.

Bank of California,