Dencker v. Bernstein

NOURSE, P. J. —Plaintiff, Ellen S. Dencker as assignee

of Jack M. Feder, brought an action against defendant David Bernstein for payment of $3,750 plus interest, claiming the sum to be due Feder, a real estate broker, for his services in obtaining a buyer for defendant’s property.

On December 15, 1947, appellant entered into a contract with Feder to sell certain property. The Uniform Authorization to Sell read: “In consideration of the listing for sale of the property hereinafter described and in consideration of the services to be performed by the agent, the undersigned, herein designated as the seller, hereby authorizes Jack M. Feder herein designated as the agent, exclusively and irrevocably for the term of 30 days from the date hereof, to sell and enter into and sign a written contract in substantial eon[758]formity with the ‘Uniform Deposit Receipt and Agreement of Sale’' adopted by the San Francisco Real Estate Board on July 1, 1944, in the name of and for the seller, for the sale and conveyance at the price of One Hundred Thousand and no/100 ($100,000.00) Dollars of the following described property ...” (Emphasis ours.)

On January 13, 1948, Feder presented appellant with an agreement of sale signed by Harry Friedman, the buyer. Appellant proposed that his attorney examine the papers and on the following day, January 14, 1948, the final day covered by the authorization, • appellant and Feder met with the attorney at his office, a discussion followed, certain changes were made in the terms of the agreement which’ appellant desired, which changes were attached as riders to the agreement and Feder instructed to have the purchaser initial the riders. On that same day Feder had the riders initialed by Selby E. Pels who had been authorized by Friedman to sign for him and act as his agent. Although Feder testified he phoned Bernstein the evening of January 14 and told him the riders had been initialed, the completed agreement of sale was not delivered to Bernstein on that date. Feder attempted to contact appellant the following day but did not succeed in reaching him until January 16, 1948, at which time appellant refused to consummate the sale on the ground that the authorization of the broker had expired.

The question presented by appellant is: “After the period of a real estate broker’s exclusive authorization has expired, is he entitled to a commission if he then presents a written agreement to purchase dated within the period of the broker’s exclusive authorization, and the seller refuses to consummate the sale upon the grounds of the late tender?”