Penberthy v. Vahl

NOTJRSE, P. J. Plaintiff, a real estate broker, brought an action for damages in the amount of $6,250 for an alleged breach of contract by defendant of an exclusive right to sell. The cause was tried without a jury, judgment going for defendant, the trial court finding that defendant had not dealt with her property in such a manner as to prevent the performance of the contract or to make performance impossible, and that she was ready, willing and able to transfer the property under the terms of the contract if plaintiff had obtained a purchaser.

The facts of the ease are that on February 18, 1947, appellant and respondent entered into a contract in which appellant was given an exclusive right to sell within a period of thirty days certain real property, furniture, fixtures, liquor and liquor license and the business conducted by respondent known as 1 Wahl’s Club.” Before the expiration of the thirty days respondent entered into an agreement with Harold B. Graham to lease the property to him for a period of five years on a monthly rental basis. On March 7, 1947, respondent had recorded in the office of the County Recorder of Santa Clara County a notice of intention to transfer the liquor license included in the agreement with Graham and also had recorded a limited partnership certificate between herself as limited partner and Graham as general partner.

Respondent gave testimony to the effect that in contemplation of a six months’ trip abroad she had made these agreements with. Graham so he could carry on the business during her absence, that arrangements were made with Mr. Graham for him to assign the liquor license and other interests back to her when she returned so she could resume operation, that when the agreements were made there was a definite understanding that should appellant find a buyer for the place she would repossess the property in order to sell. Graham [3]and respondent’s attorney, who was present at the time of the business transactions between Graham and respondent, both gave testimony which supported that of respondent.

Respondent did repossess the property, and had the liquor license transferred to her upon her return from Europe. She testified that at all times the property was available for sale, and that at the time of the trial she was willing to sell should appellant produce a buyer able to comply with the terms.

The trial court found that although appellant had advertised and had devoted some time to trying to sell the property he had not procured a buyer and there is no contention by appellant that he did produce a buyer. Friends of appellant told him that the 11 Vahl’s Tavern” had been sold; he saw the recorded transactions between Graham and respondent in the recorder’s office, and without consulting respondent came to the conclusion that the recorded transactions were a breach of the contract between respondent and him making it impossible for him to fulfill his part of the contract. On March 25, 1947, appellant filed his complaint.