Phelps v. Brown

BELCHER, C. It appears from the findings in this case that in June, 1887, one Norton and wife owned a tract of land [428]in Santa Clara county, which was encumbered by a mortgage for $9,000, and the plaintiff, a married woman, owned a house and lot in the city of San Jose. The Nortons wished to exchange their land for the lot of plaintiff, and to negotiate the exchange they employed the defendants, who were real estate agents doing business in San Jose as partners under the firm name of Brown & Ensign, and orally agreed to pay them $500 as a commission if the exchange should be made. The proposition of the Nortons was that they would convey their land to the plaintiff for $20,000. and in payment thereof she should assume and pay the mortgage on the land, and should convey her lot to them for $6,500, and pay to them the balance of $4,500 in cash when the deeds should be executed. This proposition was put in writing and given to the defendants, and they delivered it to the plaintiff. She was willing to accept the proposition and make the trade if she could realize $6,750 for her lot, and not otherwise. The defendants then agreed to pay her $250 out of their commissions when the trade should be consummated. This arrangement was satisfactory, and she thereupon drew her check on a local bank for $500 payable to the Nortons, and handed the same to the defendants as a deposit or first payment. The defendants on the same day gave the check to the Nortons, who executed a receipt therefor, closing with the words: “Trade to be finished within two weeks from date, or this deposit to be forfeited, without recourse. Title to prove good, or no sale, and this deposit to be returned.” A few days later the defendants handed back to the plaintiff her check, and she thereupon gave to them in place of the check $500 in money, which they at once paid over to the Nortons. Subsequently it appeared from the abstract of title furnished by the plaintiff that an attachment, issued in an action against her husband, had been levied on her property; and on learning this the Nortons refused to accept her deed, or to carry out the proposed exchange, unless she would have the attachment removed. She offered to give him a warranty deed, but refused to procure the discharge of the attachment. The Nortons were ready and willing to complete the trade, and tendered a deed of their property to the plaintiff, but she never offered to convey to them an unencumbered title to her property, and never tendered or offered to pay the balance of the purchase money. [429]