Dowds v. Armstrong

BARNARD, P. J. The plaintiff brought this action to recover for his services as a real estate broker in procuring an agreement for exchange of properties between the defendants Armstrong and the defendants Adams, although the prayer is for $13,000 “as actual damages, and for the sum of $15,000 as exemplary damages”. Demurrers filed by all defendants were sustained without leave to amend, and from the ensuing judgment the plaintiff has appealed.

This action is based upon three written instruments all dated May 13, 1933, copies of which are attached to the complaint as exhibits. In exhibit “A” it is provided that the Armstrongs, in consideration of one dollar paid them by the appellant, “do hereby give and grant unto the said C. G. Dowds, his heirs or assigns, the option at any time within thirty-three days from date hereof, to purchase the hereinafter described property for the amount and upon the [487]terms herein stated”. After describing the property the option provided that the property should include the crop of fruit then growing thereon; that the purchase price should be $65,000; that a trust deed for $29,000 should be assumed by the appellant or his “nominee”; that a contract between the respondent Adams and certain other parties should be assigned to the respondents Armstrong and taken as a payment of $34,000 on the purchase price; that the balance of $2,000 was to be paid in cash in escrow; that the purchase price named was to be net and no commission out of the same was to be paid; and that the agreement was to be void if the $2,000 was not paid or deposited in escrow within thirty-three days.

Exhibit “B” purports to be an agreement between the respondents Adams as first party and the respondents Armstrong as second party, although it was signed only by the first party. It provides for the conveyance by the second party to the first party of the real property described in exhibit “A” on terms considerably different from those set forth in exhibit “A”. Among other things, it is provided that the purchase price is $78,000; that the second party is also to receive from the. first party another piece of real property located in Newport Beach, taking the same at a value of $10,000; that the first party is to pay a cash difference of $5,000; that the Newport Beach property is to be deeded to one Mary L. Stream; that neither party is to pay any commission for procuring this exchange; and that the agreement is to constitute escrow instructions to a named title company when signed by both parties. Exhibit “C” purports to be an agreement between the respondents Adams as first party and the respondents Armstrong as second party, and was signed by the Armstrongs only. With certain exceptions it follows the language of exhibit “B”. However, it contains a paragraph stating that neither party assumes any personal liability for the payment of encumbrances on the properties received. The place for the name of the party to whom the Newport Beach property was to be deeded is left blank. In one paragraph the first party “agrees to pay nothing as a commission for procuring this exchange” and in another the second party “agrees to pay $3,000 and the” Newport Beach property, there being no statement as to whom these are to be paid or for what purpose. It