Chism v. Agazzoni

W. A. CHISM et al., Respondents, v. AUGUST AGAZZONI et al., Appellants.

COUNSEL

A. P. G. Steffes for Appellants.

Spencer & Harris for Respondents.

OPINION

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 [195 Cal. App. 2d 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. [1] 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].)

[2] "The readiness, willingness, and ability of the vendee is conclusively presumed in a suit by a broker to recover his commission upon proof that the vendor has entered into a valid contract of purchase and sale with the vendee. (Malmstedt v. Stillwell, 110 Cal. App. 393, 398 [294 P. 41].)

[3] "The right of the broker to his commission is not affected by failure of either party to carry out the agreement. (Lind v. Huene, supra; Twogood v. Monnette, 191 Cal. 103, 107 [215 P. 542].)"

[4] In this particular case it must be kept in mind insofar as the brokers are concerned that it was the sellers who, after having made the counteroffer to sell and after such counteroffer was accepted, refused to go further with the transaction. The fact that the escrow was not opened was solely the fault of the sellers and they should not now be permitted to escape their liability because of their own derelictions.

We have carefully read the entire record in this case and the evidence is clear, it supports the findings, and the findings support the judgment.

Appellants complain of the manner in which the findings [195 Cal. App. 2d 192]

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[195 Cal. App. 2d 193]

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[195 Cal. App. 2d 194] were drawn. Perhaps they are not a model to follow, but under the circumstances of this particular case, we find no reversible error therein.

The judgment is affirmed.

Wood, P. J., and Lillie, J., concurred.