Maracos v. Hamilton

ASHBTJRN, J. Plaintiff brokers sue for damages for breach of an agreement to pay them certain compensation for services rendered to defendant in the exchange of real properties. From a judgment for $4,550 they appeal, claiming that they are entitled to $7,000.

Amended escrow instructions, pursuant to which the deal was consummated, contain the following agreement which was signed by defendant Hamilton on August 21, 1957 : “John D. Hamilton hereby agrees to pay a commission to Bernice Hall and Anne Maragos agreeable to them in the form of Trust Deeds not to exceed $7,000.00.” On the basis of the writing and supplementing oral evidence the court found: “[DJefendant agreed to assign to plaintiffs as payment in full of all compensation due them from defendant for their services as brokers in said transaction, existing indebtednesses in the amount of not to exceed $7,000.00 secured by second deeds of trust, which indebtednesses and deeds of trust would be agreeable to plaintiffs as to terms and quality.” The defendant tendered to plaintiffs several second trust deeds which they found unsatisfactory and declined to accept. The court further found: “By reason of such inadequacies, the plaintiffs reasonably declined to accept the defendant’s offers of said instruments, and defendant defaulted in the performance of his agreement with brokers for their compensation. ’ ’ The foregoing findings are not challenged.

The appeal revolves around paragraph VI of the findings, which reads: “Pursuant to the terms of defendant’s agreement, plaintiffs were Entitled to receive promissory notes secured by second deeds of trust having an unpaid balance of not to exceed $7,000.00. The fair market value of instruments of the quality which should reasonably be acceptable to plaintiffs is $4,550.00, in which amount plaintiffs have been damaged by defendant’s default as hereinabove set forth.”

[215]Plaintiffs’ only claim to compensation rests upon the amended escrow above quoted. They had had no previous employment by defendant, no agreement written or oral for a commission, but their services were acknowledged by defendant to the extent set forth in the quoted writing. Obviously it does not contemplate cash, and the phrasing “in the form of Trust Deeds not to exceed $7,000.00” undoubtedly refers to trust deeds whose unpaid principal represented that amount. When defendant tendered to plaintiffs trust deeds which they reasonably rejected he became obligated to them for damages which must be measured by section 3300, Civil Code,1 there being no special section applicable to the instant situation.