Walter G. Reese Co. v. House

SLOSS, J.

Demurrers to plaintiff’s third amended complaint and to its supplemental complaint were sustained without leave to amend, and judgment of dismissal entered. Prom this judgment the plaintiff appeals.

The plaintiff makes no point on the ruling with respect to the supplemental complaint. The only question is whether the demurrer to the third amended complaint should have been sustained.

After setting forth the corporate character of the plaintiff, the complaint in question alleges that on or about the sixteenth day of June, 1910, Elizabeth Wirth was the owner and in possession of three lots and of an undivided one-half interest in two other lots in the city of Bakersfield. On said day said Elizabeth Wirth, in consideration of one dollar paid to her by plaintiff, and of other good and sufficient considerations, made, executed, and delivered to plaintiff an option to purchase said property, which option was in the following words:—

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“Bakersfield, California.

“Walter G. Reese Co., Inc.

“If Walter G. Reese Co., sells said property described hereon (of which I am owner) or if it sends me a party who buys or exchanges for said property, I hereby agree to pay said Walter G. Reese Co. for its services a commission of 5 per cent of sale price. Date 6/16/10.-

“In consideration of $1.00 receipt of which is hereby acknowledged, I hereby grant Walter G. Reese Co., the exclusive agency of property described hereon for 15 days or one-half month from this date, and thereafter until written withdrawal, and agree to deliver said premises at price at which I have listed same hereon, less the above mentioned commission; or optional with said Walter G. Reese Co., to pay me a net price of $2400.00 on same terms named hereon. I agree and will furnish certificate of title and other necessary papers to establish clear and satisfactory title.

“(signed) Elizabeth Wirth.”

Endorsed on said agreement was a description of the property and the figures: “$2500.00.” It is alleged that no written or other withdrawal of said option has been made and the same has at all times since its execution been and now is in full force and effect; that the sum of twenty-four hundred dollars mentioned therein “was and is and at all times since the execution thereof has been a fair and reasonable value of said property described therein, and that said optional agreement was and is fair and reasonable in all its parts, and that said sum $2400.00 is now and at all times since the execution of said agreement has been an adequate price for the said property.” On or about the twenty-first day of June, 1910, while plaintiff’s option was in force and effect and before any withdrawal or revocation thereof, and without the knowledge or consent of the plaintiff, said Elizabeth Wirth executed and delivered certain deeds of gift, whereby she attempted to convey the said property to the defendants (her children), that said deeds were without consideration and were made at the fraudulent instigation of defendants, with the intent to avoid and defeat plaintiff’s rights under said contract or option. At the time of the execution and delivery of said deeds and prior thereto, the defendants had actual knowledge of the fact that plaintiff held an option to purchase said lands,