Weber v. Ross

BRAZIL, J. pro tem.* The respondent is a real estate broker who was employed by appellant and one Goldenson to effect an exchange of properties. The appellant refused to complete the exchange after Hr. Goldenson had accepted her offer, whereupon the broker sued her for the commission he claimed became due upon the fulfillment of his obligations under the contract of exchange. Prom a judgment against her, the defendant, Mrs. Ross, has appealed.

Viewing the evidence in the light most favorable to the respondent and resolving conflicts therein in favor of the judgment, we find the following to be a substantial summary of what took place. In December 1954, Mrs. Ross, the appellant, signed an offer of exchange of her properties for a motel in Stockton belonging to Mr. Goldenson. The broker was given the exclusive right for five days to obtain its acceptance. Within the offer there is a provision that Mrs. Ross agrees to pay the broker $3,500 commission upon execution of the agreement by all parties. Mr. Goldenson, after inspecting the properties offered by Mrs. Ross, signed an acceptance thereof on December 4, 1954, without making any reservation or exception.

The written offer, following a recitation of the payment and obligation features of the proposed contract, under the heading “Terms and Conditions of Exchange” contains this [79]clause; “Subject to inspection of books and properties of both parties.” On the contract of exchange, as introduced in evidence, there appears opposite the expression last quoted the initials of Mrs. Ross and those of Mr. Goldenson. There is no question on appeal that, as to the latter, the condition was fulfilled and that his signed acceptance at the end of the contract was unconditional. The appellant contends that, as to her, the condition was not performed, that the inspection of books and properties was not complete, that further inspection was contemplated, and that her initialing of the condition was for a purpose other than as an indication that, as to her, the condition had been complied with.

Although the offer was dated December 3, 1954, Mrs. Ross actually signed the paper at her home about 9 o’clock p. m. of the day before. The respondent’s salesman, Mr. Miller, who handled all the details for the broker, called at Mrs. Ross’ home in San Mateo on that evening for the purpose of getting the written offer signed in order that he might thereafter present it to Mr. Goldenson. She was not feeling very well at the time, so only a tentative appointment was made by Mr. Miller to pick her up early the next morning to drive her to Stockton to inspect the books and the property. If Mrs. Ross were too ill to make the trip, she was to have phoned Mr. Miller, otherwise, the appointment was to be kept. Not having heard from her, the salesman called for her at 8 o’clock the next morning. In the meantime, Mr. Miller had submitted the written offer to Mr. Goldenson. The pair drove to Stockton, by way of Pleasanton, where by coincidence they met Mr. Goldenson, and he then called his motel manager and told him to arrange for the giving of such information about the motel as Mrs. Ross should want. On getting to Stockton, they went to the motel, met the manager, talked to him and his wife, stayed there about an hour and then proceeded back to San Mateo. While at the motel, there was a general conversation with the manager about business; Mrs. Ross and the wife looked at the yard proper, the back yard of the premises and the general living conditions. While in the office, the manager brought in what books he had, which covered only the last four months, and handed them to her. Apparently, she still wasn’t feeling very well for she then said “Well, I don’t want to take the time right now,” but nevertheless she did glance at them. Much information, such as concerns taxes, monthly payments, wages and other items