Richmond Realeteria, Inc. v. Canterbury Estates, Inc.

DRAPER, P. J. Plaintiff, as assignee of real estate brokers, sued for commissions claimed due on sale of land by defendants Simas to defendant Canterbury Estates, Inc. Hoytt is joined as a defendant on the claim that Canterbury is his alter ego. After trial without jury, judgment was entered in favor of plaintiff and against defendants Simas for $26,400 and defendants Simas appeal. This judgment made no disposition of plaintiff’s claim against defendants Canterbury and Hoytt, and this omission was corrected by a later judgment in their favor. Plaintiff appeals from both judgments, but asserts error only in the portions thereof favoring Canterbury and Hoytt. Plaintiff states that it does not press these appeals if the judgment against defendants Simas is affirmed.

Mr. and Mrs. Simas owned 1,044 acres of land near Pinole. On May 29, 1954, they and the brokers executed a “net listing agreement” which recited that the brokers had secured a prospective purchaser who desired an option on 450 acres. Owners granted brokers the exclusive right to sell the 450-acre parcel at a price up to $1,250 per acre, of which $1,000 was to be paid to Simas, and the balance retained by the brokers as commission. Simultaneously, owners executed an agreement granting Canterbury an option to November 15 to buy the 450 acres at $1,250 per acre. If the option “for the purchase of said 450 acres” were exercised, payment of $62,500 (50 acres) was to be made promptly. The remaining 400 acres were to be paid for by November 15,1958, but within this time limit deeds could be taken and payment made for parcels of not less than 50 acres each.

On November 9, however, two new agreements were made. By one, signed by broker, owners and Canterbury, the “net listing agreement” was cancelled, and broker agreed “to accept as full commission . . . the sum of One Hundred Dollars ($100.00) per acre purchased by Buyer under” the agreements of purchase and sale, and 10 per cent of the price of the lands other than the 450 acres purchased from Simas. The other agreement, signed by Canterbury and Simas, provided that the former “shall exercise [its] option ... as provided in the contract of May 29, 1954,” but that “payment of the purchase price of the first 50 acres” not be due until specified acts occurred. The price was fixed at $1,075 per acre, other terms were stated more specifically, and Canterbury was granted a “first refusal” as to the 594 acres owned by Simas but not covered by the option. This document also recited can[402]cellation of the 1 ‘ net listing agreement ’ ’ and the agreement of broker “to accept . . . $100 per acre as full and complete commission upon the sale of the land described in" the option agreement. "Therefore, Owner shall receive the total purchase price of $1,175 per acre for said land .... Of said purchase price, $1,075 per acre shall be paid to Owner herein and $100 per acre shall be paid to [broker] " as full and complete commission for the sale of said land.