Chism v. Agazzoni

FOURT, J. This is an appeal from a judgment in favor of plaintiffs upon a contract for a real estate brokers’ commission.

On November 28, 1956, the defendants (owners of property in question) gave to plaintiffs (real estate brokers) a written listing agreement covering a motel property on. Ventura Boulevard in Los Angeles. On May 23, 1957, the plaintiffs obtained from John Brogan and Agnes Brogan, husband and wife, .a written offer to purchase the motel from the owners. The original offer was not acceptable to the owners and they thereupon submitted a written counteroffer by them to the Brogans. The counteroffer was accepted by the Brogans in writing. The counteroffer was in the form generally referred to as a deposit and reading as follows: [See pages 192 and 193.]

Thereafter the Brogans (buyers) made every effort to open an escrow at the Bank of America, International Branch, and the owners (sellers) failed, refused and neglected to join in the escrow instructions. In fact one of the owners stated in effect that she would not even read the proposed instructions. The agreed price, as indicated by the accepted counteroffer, was $95,000 and 5 percent thereof amounts to $4,750.

The court, after several hearings, awarded judgment in ' favor of the plaintiffs as requested, namely for $4,750.

The appellants assert in effect that the whole transaction [191]so far as they were concerned, depended upon whether the motel could be connected to the city sewer system. The judge, upon conflicting evidence, determined that such was not the case.

The appellants also contend that the hooking-up of the motel to the sewer system was a condition precedent to the contract’s becoming effective. The court found otherwise upon substantial evidence.

There was evidence to the effect that the plaintiffs were duly licensed, were acting under a valid and binding written contract or contracts at all times with which we' are concerned. The plaintiffs produced the Brogans (buyers) who were ready, willing and able to purchase the motel property upon the terms submitted by the defendants (owners and sellers) in writing. As stated in Meyer v. Selggio, 80 Cal.App.2d 161, 164 [181 P.2d 690] :

“A broker’s commission is earned when the vendee and vendor have executed a binding, written agreement between them upon the terms provided in the contract of employment of the broker, and the vendee is ready, willing, and able to perform the contract on the terms prescribed. (Lind v. Huene, 205 Cal. 569, 570 et seq. [271 P. 1087].)