Atkinson v. Zarevich

KNIGHT, J. This is an appeal by plaintiff from a judgment in defendant’s favor based on the verdict of a jury, in an action to recover real estate commissions alleged to be due under a written agreement dated January 27, 1936, whereby defendant agreed to sell a portion of his ranch property for the sum of $19,000, or the whole thereof for $37,000, and to pay a commission of five per cent on the sale price. On January 30, 1936, plaintiff procured a purchaser named T. S. Purtado, who agreed in writing to buy the property on the terms stated in the agreement; but defendant claimed he revoked the agreement to sell prior to performance by plaintiff, and he pleaded such revocation by way of special defense, and the jury found in his favor. As main grounds for reversal plaintiff contends that the evidence is insufficient to support the implied finding of the jury that there was a legal revocation of the agreement prior to performance by plaintiff, it being argued in this behalf that the evidence introduced by defendant in support of his special defense was so unsubstantial that it did not even raise a conflict with the evidence introduced on behalf of plaintiff, and that therefore the trial court erred in not granting plaintiff’s motion for a directed verdict.

It appears from the evidence that plaintiff had been negotiating with Purtado for several days prior to the day on which defendant signed the agreement to sell, and that Purtado had agreed to purchase a portion of the property for $16,000, but that defendant had rejected the offer. Thereupon and on January 27,1936, plaintiff obtained from defendant the written agreement in question, to sell part of the ranch for $19,000 or the whole for $37,000, and to pay the commission mentioned. Purtado then offered $35,000 for the entire property, but defendant refused the offer; whereupon Purtado increased his offer to $36,000 and plaintiff communicated the offer to defendant. The latter stated he would talk it over with his wife, and give plaintiff an answer the next day. On the following afternoon he met plaintiff at the latter’s office. He could not remember with any degree of certainty whether the meeting took place on the afternoon of January 29th or January 30th. However, he testified that at that time he told plaintiff he could not sell the prop[592]erty, because his wife was not satisfied and did not want him to sell; and that plaintiff then.talked to him about the matter, told him the deal was an advantageous one, and that he had better sell; that thereupon defendant told plaintiff he would go home and see what he could do—that he would take the matter up with his wife and let plaintiff know; but that after he had again discussed the matter with his wife she still refused to sell, and that consequently, on the afternoon of that same day, about 4:30 o’clock, he telephoned plaintiff’s office and revoked the agreement to sell. His testimony in this regard was as follows: “ I took the telephone, telephoned to the girl at the office, ask if Mr. Atkinson is there; the girl said, ‘No, he went out somewhere’. I said ‘Tell Mr. Atkinson I draw that property out of the market, not for sale any more’ ... I think she said, ‘I don’t get you right’. I said second time, ‘Tell Mr. Atkinson I put that property out of the market, not for sale any more’. I heard her say ‘All right’.”