Adams v. Angelich

CONLEY, P. J. The plaintiff, a real estate broker of Porterville and Goleta, appeals from an adverse judgment in an action by which he seeks to recover a fee for allegedly finding a purchaser ready, able and willing to buy the 20-acre orange grove in Kern County owned by the defendant, Alex Angelich, and his tenant in common, Mike Janoko. The defendant and Mr. Janoko inherited the land from a cousin; Mr. Janoko was in charge of the agricultural operations, but Mr. Angelich who lived in Long Beach was a stranger to orange growing.

The record shows that in the late spring of 1962 the cotenants discussed between themselves the possible sale of the property with particular stress on the figure of $85,000. [259]The respondent heard no more about a sale until the early part of August 1962, when Frank Janoko, Jr., licensed real estate salesman working for the plaintiff and incidentally a nephew of Mike Janoko, came to his apartment in Long Beach and told him he had a buyer who would pay $85,000 for the land. At that time, respondent said he wanted $90,000, and, in compliance with the proposed sale figure, Mr. Angelich and Mr. Mike Janoko signed a written agreement giving Mr. Adams an exclusive right to sell the real property from August 8, 1962, to November 30, 1962. The owners granted Mr. Adams “the sole and irrevocable right to sell said property within said time for $90,000” and authorized him to accept a deposit thereon with the following terms: “Forty Eight Thousand Dollars ($48,000) cash down payment. Seller to take back First Trust Deed in the amount of Forty Two Thousand Dollars ($42,000) payable in seven equal Installments of Six Thousand Dollars ($6,000) plus 6% per annum.” The agreement provided for a 5 per cent selling price commission. The instrument was dated the 13th day of August, 1962, and was signed by both of the coowners, as well as by Frank Janoko for Mr. Adams.

The real estate salesman succeeded in interesting Elmer H. Rohwer and his wife, Bethel L. Rohwer, as possible purchasers. Mr. Rohwer went to the orange grove with experts in the business, estimated the growing crop, made tentative arrangements for its sale, and secured a promised credit from a banker for sufficient funds to make a substantial down payment after getting the backing of his father-in-law.

On November 1 or 2, 1962, Frank Janoko, Jr., went to respondent’s apartment in Long Beach and told him that he had a buyer. At that time, he showed respondent a handwritten form of deposit receipt; respondent started to read it but when he saw that it provided for the inclusion of the orange crop, he went no further to ascertain if there were any other objections to the receipt; he told Frank Janoko, Jr., that he would not sign for a sale that included the crop growing on the real property, which was estimated to be of a value of from $25,000 to $30,000 and was almost ready for picking. This handwritten deposit receipt is not in evidence ; the testimony was that it was later thrown into the wastebasket by the plaintiff. It is not the document upon which the appellant bases his alleged right to a commission; however, there is evidence that in any event it did not conform with the offer of sale because it contained a provision