Totty v. Azevedo

KAUFMAN, J. This is an appeal from a judgment for damages in the sum of $1,000 in favor of respondents Booker W. Totty and Audrey Y. Totty and against appellants Joseph and Mary Azevedo, for a breach in bad faith by said appellants of a contract in writing for the sale of realty. The [168]court found the damages to be the sum of $1,000, the amount by which the actual value of the property exceeded the contract price of $9,000. Damages in the sum of $350 were awarded to Robert M. Edwards, real estate broker, on his cross-complaint against defendants for the commission he would have received, if the contract had been performed.

Appellants contend that the broker’s damages in the sum of $350 are erroneous, inasmuch as cross-complainant’s claim was for two-thirds of the broker’s commission of 5 per cent on the purchase price of $9,000 or $300. Respondents concede at the outset that judgment in favor of cross-complainant should be in the sum of $300 and state that a typographical error occurred in the findings and judgment. The findings recite that cross-complainant had a contract with cross-defendants Joseph and Mary Azevedo, and Fanny and Ruth Frederick, partners under the firm name of L. S. Frederick, for a commission of two-thirds of 5 per cent of the selling price of the property. At the end of the trial the court asked respondent’s attorney to prepare findings and stated that the evidence was sufficient to sustain a judgment in favor of cross-complainant for $300. The judgment in favor of cross-complainant should therefore be amended to read $300 instead of $350.

The contract on which this action was based consists of a deposit receipt form of the Affiliated Brokers, dated September 19, 1950, which was filled out by the broker and signed by Booker W. Totty and Audrey Totty as purchasers. It was accepted and signed by Joseph T. Azevedo and Mary M. Azevedo as seller, on September 20, 1950. On September 20, 1950, the Tottys deposited $2,500, specified in the deposit receipt as the down payment required, with the Alameda County Title Company. Thereafter, the Azevedos, with the L. B. Frederick realty firm acting as broker, conveyed the property to other parties by a deed which bore date of October 3, 1950, and for a price of $10,000. This sale was handled by appellants Fanny and Ruth Frederick who received a commission of $500.

Appellants in their pleadings raised the sole defense that the contract had been procured by fraudulent representations as to the financial worth of the prospective buyers. It is stated in the answer that the Azevedos conveyed the property “to persons other than plaintiffs solely by reason of the fact that plaintiffs had misrepresented to defendants their financial position and ability to pay the price for said prop