Robert Marsh Co., Inc. v. Tremper

SEAWELL, J.

— Appeal from a judgment awarding liquidated damages arising upon a real estate broker’s contract for compensation on account of an exchange of real property. Judgment went for plaintiff in the sum of $2,200— $1,000 of which was assessed as actual and $1,000 as liquidated damages and $200 as attorneys’ fees.

Robert Marsh & Co., Inc., plaintiff and respondent, was a real estate broker doing business in the city of Los Angeles, this state.

[574]

Appellants, Theodore P. Tremper and May 0. Tremper, his wife, were the owners of certain described real property situate in the state of Washington. Charles E. Smith was the owner of certain lots situate in said city of Los Angeles.

By and through the efforts of said real estate broker or agent, said Tremper and said Smith executed certain agreements prepared by said broker for the exchange of real properties, which agreements provided for the payment by the Trempers of stated sums to said broker for its services, as will hereafter more particularly appear. The agreements providing for the exchange and the broker’s compensation or commission are somewhat unusual and, it may here be added, uncertain in their provisions. Said instruments having been prepared by said broker, such uncertainties as they may contain, in the absence of testimony removing or explaining said uncertainties, must be interpreted most strongly against the party who caused them to exist. (See. 1654, Civ. Code; 6 Cal. Jur. 307.)

Such portions of the agreements between respondent real estate broker and the Trempers and between said broker and Smith, which constitute the basis of respondent’s claim for damages, provide that said broker, Robert Marsh

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Co., Inc., is to act as principal or agent of said Trempers and Smith, respectively, in said transaction. As to the Trempers, the agreement provides: “That when he [real estate agent] has accepted or procured an acceptance of this proposition to exchange the above properties on the above terms, they will then pay the sum of One Thousand Dollars, regardless of the amount of property or money it receives in, or through the acceptance and consummation of the above exchange and have no objection to it receiving other compensation from the owner of the second piece of property [Smith] or others.