Borden v. Piscovich

SCHOTTKY, J. Plaintiff Donald S. Borden, a licensed real estate broker, commenced an action to recover a $12,500 real estate sale commission claimed under a written selling authorization signed by defendant. Issue was joined and the case was tried by the court sitting without a jury. Judgment was rendered in favor of defendant, and plaintiff has appealed from said judgment.

The principal contention made by appellant is that the evidence is insufficient to support the judgment. Before discussing this contention, we shall give a brief summary of the evidence as shown by the record, bearing in mind the well-settled rule that evidence must be viewed in the light most favorable to the respondent and that conflicts in the evidence must be disregarded.

On June 4, 1959, respondent entered into a written contract with appellant authorizing appellant to sell approximately 10 acres of respondent’s property located in Sacramento County for $125,000. It was agreed that the commission should be 10 per cent of the selling price.

[226]Mr. McClintock, representing a group of physicians, submitted an offer to buy this property on July 2, 1959, for the amount asked ($125,000), with a down payment of $48,000 cash, together with two personal notes in the total amount of $30,000, payable in two installments, 7 acres of the property to be released upon payment, and the balance of $45,000 evidenced by a note to be secured by a first deed of trust on the remaining 3 acres.

Although the price was acceptable to respondent, the terms were not met. The authorization to sell terminated and respondent entered into a second contract with appellant on July 8, 1959. This contract provided for the same sales price but provided that the “terms to be arranged.”

On the 16th day of July respondent’s attorney wrote to appellant pointing out that the McClintock offer was unsatisfactory because the buyers would be obtaining a release of 7 acres of the property for $50,000 and two unsecured notes of $30,000. He then stated that to release the 7 acres respondent should receive $87,000; for tax purposes the cash payment should be approximately $36,250, and $50,750 should be by secured notes payable in 10 years; the remaining $37,500 could be secured by the 3 acres as suggested. He concluded by stating that the transaction probably could be worked out on acceptable terms if “your buyers have other good security” which is approved by respondent.