Pearce v. Underwood

McCOMB, J. From a judgment in favor of defendant after trial before the court without a jury in an action to recover a sum alleged to be due as a broker’s commission plaintiff appeals.

The essential facts are:

Defendant orally requested plaintiff, a real estate broker, to secure a purchaser for an apartment house located in the city of Los Angeles known as the Merrill Apartments. Plaintiff secured a written offer from a responsible person to purchase the Merrill Apartments, which offer defendant declined to accept unless the offer was modified to provide that the sale price should be $52,500, $12,500 to be paid in cash and the balance secured by a first trust deed on the property in favor of defendant. At the time there was a $26,000 first mortgage against the property which had previously been made in favor of the Winter Investment Company and by it assigned to the New York Life Insurance Company. The note which the loan secured did not permit prepayment of the loan.

Plaintiff obtained a written offer from his client to purchase the property upon the revised terms, which offer he submitted to defendant, who refused to sign the same until plaintiff agreed to obtain the consent of the New York Life Insurance Company to prepayment of the mortgage note which it held. This, plaintiff agreed to do, whereupon defendant accepted the offer which plaintiff had procured, and signed a written contract, agreeing to the terms thereof including a provision for the payment to plaintiff of a commission in the sum of $2,500. Subsequently the New York Life Insurance Company refused to accept prepayment of the mortgage note which it [284]held and defendant gave plaintiff notice that she would not perform the contract.

These are the questions presented for determination:

First: Was there substantial evidence to sustain findings of fact conforming to the facts set forth above?

Second: Did the trial court commit prejudicial error in receiving evidence of oral statements of plaintiff to the effect that he agreed to arrange for the prepayment of the mortgage note held by the New York Life Insurance Company?

The first question must be answered in the affirmative. We have examined the record and are of the opinion there was substantial evidence considered in connection with such inferences as the trial judge may have reasonably drawn therefrom to sustain the findings of fact set forth above and each and every other material fact upon which the judgment was necessarily predicated.