Shainwald, Buckbee & Co. v. Cady

Garoutte, J. This is an action by real estate brokers to recover commissions upon a sale of real estate. Judgment in the lower court went for plaintiffs, and defendant appeals from that judgment and the order denying his motion for a new trial. There are no briefs on file, and upon an examination of the record there appears to be but one assignment of error requiring our consideration.

In the written agreement given by appellant to respondents, authorizing them to find a purchaser for a certain tract of land, to wit, the town site of Agua Caliente, it was stipulated that if appellant himself made a sale of the property within the life of the agreement, the brokers were to be allowed two per cent commissions upon the amount of such sale, and the cause of action in this [84]case is based upon an alleged breach of that provision of the agreement, the brokers claiming that the appellant, Cady, made a sale of the property, while he insists that such is not the fact, and "that the property has not been sold.

The trial court found that appellant sold the property to one George H. Maxwell for the sum of fifteen thousand dollars, and it is as to the sufficiency of the evidence to support this finding that our attention is specially directed. There is no conflict in the evidence upon this point, and it is as follows: Appellant, Cady, and his wife, Gail Cady, entered into a written contract with one George H. Maxwell, whereby they agreed to sell said Maxwell, at any time within one year from March 5, 1888, certain real estate (including the aforesaid town site), together with all the personal property now on said premises, free and clear of all encumbrances, for the purchase price of $30,000, “provided that said Maxwell shall pay to said M. K. Cady $1,000 on the delivery of these presents, and $1000 April 1, 1888, and $1,000 June 1, 1888, and shall pay to Ignatz Steinhart the interest accrued U March 1, 1888, amounting to $1,984 on mortgages held by said Steinhart on said property, the amount of all such payments to be deducted from said purchase price of $30,000; .... and said parties of the first part agree that said party of the second part may sell any portion of said land at any time during the term of this agreement, and that upon such sales being made, they will execute and deliver deeds,” etc.; and it was further provided that all moneys received upon such sales should be first applied to the payment of certain mortgages, and that when such mortgages were paid, all further moneys received from such sales were to be applied as payments upon the balance of the purchase price; and it was further provided that Maxwell should have exclusive possession of the property, with the right to make alterations and improvements thereon, and that he should have an extension of the agreement for the further term of two years, by paying interest in advance upon