W. I. Hollingsworth & Co. v. Gallen

DORAN, J. The action herein was instituted by appellant to recover the sum of $8,575 as a real estate broker’s commission based upon a written contract of employment by the respondents. The respondent Gallen, record owner of the property in question, on January 12,1945, gave to the respondents Bulask and Cole, a real estate brokerage firm, an option to purchase said property. In October or November, 1946, Cole met with a Mr. Kurlander, an employee of plaintiff-appellant, for the purpose of discussing sale of the property by appellant. This meeting resulted in a letter signed by Bulask arid Cole giving to the Hollingsworth Company “an option to purchase the southwest corner of Olympic Boulevard and Bundy Drive, consisting of approximately 155,000 square feet,” at a price of $175,000. The appellant company was to “receive commission on the gross sale price of 5%,” and [534]the option was “only for the sale of said property to W. & J. Sloane Company, or nominee, who will lease and/or erect building for W. & J. Sloane Company as tenants.” By another letter, this option which by its terms expired on December 5, was extended to December 15, 1946.

On December 14, 1946 a “Standard Form Deposit Receipt” was executed by “W. I. Hollingsworth & Co. (Broker) by John J. Kurlander, ’ ’ acknowledging receipt from W. & J. Sloane of “$15,000.00 deposited as initial payment on the purchase of . . . Southwest corner of Olympic and Bundy. 588 feet running West of Bundy on Olympic. 260 feet running south on Bundy from Olympic; by approximately 588 feet running west from Bundy along railroad right-of-way; by 271 feet on west side of property.’ ’ The full price stipulated was $171,500; the buyer W. & J. Sloane by Myles E. Andrews, Vice President, signed in acceptance under the printed words “I agree to purchase said property on the above terms.” The owner, Henry O. Gallen together with Cole and Bulask, signed the following statement printed at the foot of the receipt: “I . . . hereby agree to sell said property on above terms and conditions and agree to pay a commission of $8,-576.00 to the above named Broker, or one-half the deposit in the event same is forfeited by the purchaser, provided that same shall not exceed the full amount of the commission.”

It appears from the the record that in place of the dimensions recited in the deposit receipt quoted above, the actual dimensions of the property were 577.83 by 245.07 by 566.63 by 266.56 feet making the actual area about 30,000 square feet less than the computed area. “Within two weeks after said contract . . . ,” according to appellant’s brief, “the purchaser demanded of plaintiff-appellant (broker) the return of the $15,-000 so deposited” on account of the area shortage, and “The plaintiff-appellant thereupon returned the $15,000 deposit and the contract of purchase was never thereafter consummated.” The respondents refused to pay appellant anything at all as a commission or otherwise and the present action resulted. The trial court granted a nonsuit at the close of plaintiff’s case.