Tolson v. Griset

GRIFFIN, P. J. Plaintiffs-appellants, licensed real estate brokers, brought this action against defendants-respondents Charles A. Griset and wife, an elderly couple, who own 40 acres of bean land in Orange County as joint tenants, for a real estate commission of $7,000 upon a written listing of that property. It was dated March 4, 1955, and signed only by defendant husband. A nonsuit was granted as to defendant wife.

After hearing the evidence, the court found that at the time the husband executed said listing and agreement with plaintiffs, he stated to the plaintiffs that said real property was held jointly between said defendant and his wife and that her signature and consent to the sale of said property was necessary and his listing the property for sale was contingent upon her signing an agreement with the plaintiffs for the sale of said property; that she did not sign the listing and at all times refused to execute it or to agree to sell the property ; and that her agreement to sell said real property was a condition precedent to the taking effect of said contract and listing between plaintiffs and defendant Charles A. Griset. On April 4, 1955, an escrow for the consummation of the purchase of the property was opened by the purchaser, unbeknown to either defendant, and a deposit of $5,000 was made therein. Both Mr. and Mrs. Griset refused to sign the escrow instructions or proceed with the sale. The court then further found certain peculiar facts in reference to the opening of this escrow. April 4 was the last day for the exclusive agreement to be effective. It was on that day that plaintiffs opened the escrow and deposited the check. The escrow was opened in another county many miles distant from the place where the real property was located and where the defendants reside. In the late afternoon of that day, one of the attorneys for plaintiffs telephoned Mrs. Griset that a sale had been made to which she replied that she had not agreed to make any sale of the real property and that she would refuse to go through with it. Accordingly the court found that plaintiffs did not perform said listing agreement in full in communicating to defendant Charles A. Griset an offer which they had received within the time specified in said listing agreement. The court then found that the listing did not constitute a contract between the plaintiffs and the defendant Charles A. Griset, in [499]that the taking effect of said contract depended upon the condition precedent that the defendant’s wife must agree to said listing and sale and refused judgment for any commission.