Romano v. Seibt

California Court of Appeal Dec 19, 1928 No. Docket No. 5232.Published

Before: Cashin

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Holding. The court held that a real estate broker's contract may be reformed when the broker fraudulently conceals terms contrary to the parties' agreement, even if the defendant failed to read the document before signing.

Issues

Whether a contract may be reformed when one party misrepresents its contents to the other.
Whether a party's failure to read a contract precludes reformation when the other party engaged in fraudulent concealment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the plaintiff not only inserted the clause in question contrary to the agreement of the parties, but concealed the fact that it was contained in the writing.”

“the mere failure of a party to read an instrument with sufficient attention to perceive an error or defect in its contents will not prevent its reformation at the instance of the party who executes it thus carelessly.”

[587]

CASHIN, J.

An appeal by the plaintiff, a real estate broker, from a judgment entered for the defendants in an action to recover a commission.

Defendant Carl Seibt, on July 6, 1923, executed to the plaintiffs an authorization in writing for the sale by the latter of certain real estate situated in San Francisco. The writing provided for the payment of a commission of four hundred dollars to the broker in case of sale either by him or by the owner within the period fixed by the authorization. The writing by its terms provided that it should remain in force “irrevocable for ninety days from date hereof and thereafter until withdrawn ... in writing. ...” The property was not sold by the plaintiff, nor was a purchaser found by him, but the sale was made by the owner through another broker. While the sale was made after the ninety-day period the claim for commission is based upon the fact that there had been no previous withdrawal in writing of plaintiff’s authorization.

As defenses to the action and as grounds for a reformation of the instrument it was alleged that the wife of defendant Seibt, who was joined as a defendant, neither executed the writing nor authorized its execution by her husband; further, that the agreement between the parties was that the authorization should remain in force for ninety days and no more; that the authorization was drawn by plaintiff, who represented to Seibt that the same contained the above provision; that the instrument was read to said defendant by plaintiff, with the exception of that portion providing that it should remain in force after the ninety-day period, that is, until withdrawn in writing; that relying upon the statement of the plaintiff as to its provisions, which he believed to be true, defendant Seibt did not read the writing but signed the same through a mistake as to its contents.

The court found the allegations above to be true; that the writing did not express the true agreement of the parties in so far as it made necessary a notice of termination after the ninety-day period, and in that respect should be reformed. Judgment was entered for defendants accordingly.

The findings of the court are fully supported by the evidence, but appellant claims that defendant Seibt was

Romano v. Seibt

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CASHIN, J.

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