Wilson v. Sturgis

Searls, C. This is an action to recover the sum of $846, as commissions, alleged to be due plaintiffs, co-partners, as real estate brokers, upon the sale of defendant’s ranch situate in Contra Costa County. Plaintiffs had judgment as prayed for in their complaint. From the judgment, and from an order denying a new trial, the defendant appeals.

On the tenth day of May, 1883, defendant entered into a written contract with the plaintiffs, by the terms of which he authorized the latter to “ sell and take deposits” upon his ranch situate in Contra Costa County, consisting of 268 acres, for the sum of $40 per acre, terms cash (or $11,440). The authorization to be in full force until September 1, 1883.

In case plaintiffs were instrumental in effecting a sale of the property, or finding a customer for the same, defendant agreed to pay two and a half per cent commission, and all over they might realize.

On or about May 21,1883, plaintiffs found a purchaser for the property in one P. F. Cox, to whom they agreed to sell for twelve thousand dollars, payment to be made and deed delivered on or before September 1, 1883. Cox paid plaintiffs ten per cent of the purchase price (twelve hundred dollars), which they paid over to defendant.

There was an understanding between the parties that the payment should be made and the deed delivered on the first day of September at the. Bank of Martinez. On [228]the last-mentioned day the parties met at the bank, and Cox offered checks in payment of the sum due, which defendant declined to receive. Defendant then deposited a deed of the property in escrow with the officers of the bank, to be delivered to Cox upon payment of the money due (ten thousand eight hundred dollars) at any time-prior to September 5, 1883.

On the fifth day of September, Cox called at the bank, deposited the ten thousand eight hundred dollars to the credit of defendant, and demanded the deed, which was. refused upon the ground that the time for payment had expired. Defendant caused the sum of ten thousand eight hundred dollars to be transferred in the bank to-the credit of Cox, but did not return or offer to return the twelve hundred dollars paid to him. A few days later, and before the tenth day of September, defendant conveyed the property to his father, Josiah Sturgis, and the latter conveyed to Cox, receiving payment of the residue of ten thousand eight hundred dollars, due on the original contract.