Maze v. Gordon

Temple, C. — Plaintiff’s appeal from the judgment and an order refusing a new trial. Action to recover broker’s commission.

The broker was employed under the following contract: —

“ Know all men by these presents, that I have this day placed in charge and possession of W. C. Maze, as broker, for sale for the term of twelve (12) months from date hereof, the following described property, to wit, secs. 1, 2, 3, 10, 11, 12, 13,14, and 15 of township 11 south, range 19 east, containing 5,720 acres, or any number of acres agreed on of above-numbered sections, commencing on the north side, at $7 per acre, and agree to pay 5 per cent on small sales, and Si per cent on entire tract of 10,840 acres, for $75,000, with improvements thereon; and I hereby agree that if, during said time or thereafter, and before the said W. C. Maze shall have been notified in writing not to sell said property, he shall make sale, or any sale be made, of said property for the sum of $7 per acre, or $75,000 on' entire tract, or any less sum hereafter fixed by J. H. Hamilton, to pay the said W. C. Maze 3i and 5 per cent commission on the [64]gross amount of said sale, and further agree to pay the said W. 0. Maze the like commission in the event of withdrawing the sale of said property during said time. Said W. C. Maze is authorized to allow any person applying to purchase said property as aforesaid a reasonable time to examine the title thereto, and to give such person a receipt for the deposit made, with the condition that if the title is defective the deposit will be returned, and also the sum of $0,000 to cover expenses of examination of title. And it is further agreed that in case I consummate the sale or exchange land at any time to the said W. C. Maze’s customer, he having shown or called the attention of said customer to the above property, and he afterwards becomes a purchaser, to pay the above compensation, and will also pay the above compensation if I should find purchaser.

“Witness my hand this twenty-ninth day of October, 1886. J. H. Hamilton.”

The broker found a purchaser for the entire tract of 10.840 acres, and entered into a written contract with the proposed purchaser in the name of his principal. The terms of the sale differed materially from those authorized in the broker’s contract. The tract of 10,840 acres is described in the purchaser’s contract as the east half of township 11 south, range 19 east, Mount Diablo meridian, excepting section 36, and 40 acres in section 12, which is not owned or possessed by Hamilton. It is averred in the complaint that this is the entire tract of 10.840 acres alluded to in the contract.