Darrow v. Houlihan

WASTE, C. J.

Plaintiff prosecutes this appeal from an adverse judgment entered in an action brought to

[773]

recover $600 broker’s commissions alleged to be due Mm for Ms services in attempting to effect an exchange of properties between defendants and W. S. and Lillian M. Little. On August 19, 1924, the defendants in writing authorized the plaintiff to negotiate an exchange of their property for that of the Littles, the offer to remain open for a period of ten days. It was stipulated in the agreement that each of the exchanging parties was to assume an “indebtedness” of $2,000 on the property received in the event the exchange was consummated. The exchange value of the respective properties was fixed at $6,000. A period of sixty days from the acceptance of the offer was to be allowed the Littles for the furmshing of a deed and certificate of title. The writing provided for the payment to plaintiff of the regular brokerage commission when he had secured an acceptance of the proposition to exchange on the specified terms. It was further provided that plaintiff might act as agent for and receive a commission from the Littles. The final stipulation of the writing was that in the event defendants’ offer of exchange was accepted by the Littles, and either party should thereafter fail to comply with the terms of the agreement, the regular brokerage commission on the aggregate exchange value of the properties was to be paid by the defaulting party. Plaintiff seasonably secured the Littles’ written acceptance of and consent to the terms and conditions of the offer. On the day following such acceptance the defendants refused to consummate the exchange, though the Littles had, in the meantime, placed their papers in escrow. :

By way of defense to this action for commissions on the aggregate exchange value of the properties defendants aver that plaintiff, prior to the making of their written offer of exchange, falsely represented to them that the property of the Littles was encumbered with a mortgage of $2,000, due in about six months, when in truth the encumbrance was in the form of a trust deed, payable at the rate of $25 a month, upon which there remained $1,000 unpaid.

Unless the agreement of exchange was secured by fraud the plaintiff was entitled to the agreed commission upon securing the Littles’ written acceptance of defendants’ offer even though the exchange were never actually