Gunn v. Bank of California

De Haven, J. The plaintiff is a real estate broker, and brought this action to recover from the defendant one thousand dollars for commissions alleged to be due him for obtaining a purchaser of certain real estate owned by defendant. Judgment was rendered in the superior court in favor of the plaintiff for the amount demanded, and from this judgment and an order denying its motion for a new trial, the defendant appeals.

It appears from the record that the plaintiff and defendant entered into a written contract by which-the plaintiff was authorized “to sell” the property described therein on or before January 20, 1890, for the sum of forty-one thousand dollars, or any less sum which might thereafter be fixed by defendant; and in the event of the property being sold by plaintiff within the time named, the defendant promised to pay to him a commission of one thousand dollars upon any sum which defendant might accept for the same. The court below found that the plaintiff complied with this contract on his part by obtaining within the time fixed in the contract a purchaser who was ready, willing, and able to purchase the property mentioned for the price of forty-one thousand dollars, “and that plaintiff before said twentieth day of January, 1890, notified defendant in writing that he had found such purchaser, who was ready, willing, and [351]able to purchase said real estate for said purchase price,” and that defendant ratified the sale and furnished aud delivered to the purchaser an abstract of title to said real estate.

The defendant contends that the finding of the court to the effect that plaintiff found a purchaser, who was able, ready, and vtilling to purchase the property described in plaintiff’s contract of employment, is not sustained by the evidence, aud this is the only matter necessary to be determined by us. There is no conflict in the evidence upon this point, so that the real question which we are called upon to decide is, whether what was done by plaintiff amounted to finding a purchaser within the meaning of the law which entitles a broker to recover his commissions when he has found a purchaser who is able, ready, and willing to enter into a contract of purchase upon the terms authorized by his principal. The facts upon which this question arises are these: On the 19th of December, 1889, one Keating orally agreed with the plaintiff to purchase the property referred to for the sum of forty-one thousand dollars, and paid to the plaintiff five hundred dollars on account of said purchase price, taking a receipt therefor signed by the plaintiff alone, which receipt recited that the purchaser was to have twenty days within which to examine the title to the property, and that the deposit would be returned to him should the title prove defective. On the same day the plaintiff sent to a Mr. Brown (who seems to have been acting for defendant in the matter) the following letter: —