Schurz v. Gelber

DORAN, J. The present action was instituted by respondent, a licensed real estate broker, to recover commissions, alleging that appellant has repudiated a written agreement and had refused to consummate an exchange of real properties negotiated by the respondent broker.

The complaint alleges that on January 19, 1951, appellant Gelber, in writing, appointed respondent as agent for a period of two days to negotiate an exchange of properties between appellant and Mr. and Mrs. William C. Weifenbaeh; that on January 20, 1951, respondent secured from the Weifenbachs an acceptance of the proposed exchange agreement; that thereafter appellant repudiated the signed agreement and thus defeated respondent’s right to commissions agreed to be paid by both parties, amounting to $3,750.

The exchange agreement provided that appellant’s “Vacant Residential Lot” in Glenroy Knolls should be exchanged for the Weifenbachs’ “Unfurnished Residence” at 1737 Mandeville Lane, in Los Angeles. Appellant therein agreed to deliver the vacant lot “free and clear,” and the Weifenbachs agreed to deliver the residence property “subject to a mortgage of $20,000.00 and provided first party (appellant Gelber) deposits in escrow $50,000.00 cash which is payable to second party (Weifenbaeh) upon demand of escrow officer. As evidence of good faith first party (Gelber) deposits herewith [683]$5,000.00 with the Karl B. Schurz Company which will be placed in escrow upon the approval of this exchange agreement by the second party named herein (Weifenbach). Said $5,000.00 to be credited against the $50,000.00 cash consideration. ’ ’

Said agreement obligates Gelber to pay Schurz a commission of $750 “to become due upon the execution of this agreement by all parties hereto.” In accepting the agreement Mr. and Mrs. Weifenbach promise to pay Schurz a further commission of $3,000, which is likewise “to become due upon the execution of this agreement by all parties hereto.” Before execution of the written agreement the parties made certain changes in the original draft, for example, the total price was changed from $85,000 to $90,000 less the value of Gelber’s lot, $15,000. “Tacked down” carpets and drapes were to be included.

On Monday, January 22, 1951, respondent went to the California Bank in Beverly Hills where escrow instructions were duly prepared and signed by Mr. and Mrs. Weifenbach, respondent broker depositing appellant’s $5,000 check as provided in the exchange agreement. After the escrow had been opened, respondent called appellant who then stated that payment on the check had been stopped and that Gelber would not pay more than $85,000 for the property. On this same afternoon respondent sent appellant and the Weifenbachs photostatic copies of the exchange agreement by registered mail. Mr. and Mrs. Weifenbach did not cancel the escrow until February 28, 1951, some five weeks after appellant’s repudiation and 20 days after the respondent had filed this action.