Canovsky v. GehrsenCanovsky v. Gehrsen
This is a suit for one hundred fifty dollars ($150.00) alleged to be due as a commission of four per cent (4%) on sale of real estate.
The contract, which is on thе ordinary printed real estate broker’s form, consists of an offer to рurchase within sixty days, signed by one Victor Cefalu, on April 23, 1926, and the acceрtance signed by defendant on the same date. Offer was to hold until April 24, 1926, at fivе p. m. In other words, twenty-four hours was given for execution of contract. In the body of the printed part the word “cash” is marked out and the word “note” is writtеn in ink above it. Also the word “title” is marked out in ink.
Defendant, after denying that plaintiff hаd furnished a purchaser able and willing to buy at stipulated price, avers thаt the’ purchaser failed to deposit ten percent (10%) of the purchase price in cash upon acceptance of the offer, “it being well understood that said ten percent deposit was to be represented by cash only and respondent avers that the agreemеnt was silent as to any note before signing, that plaintiff failed to secure аny cash,” that at the time plaintiff well knew defendant was in the process оf purchasing the property, but had not then secured title.
It will be noted that alteration while implied is not clearly pleaded.
The trial judge found in favor of plaintiff and defendant has appealed.
As defendant contеnds in this Court that the agreement of sale was altered after he signed it, the burdеn of proof is on him to prove this by a preponderance of the evidence.
Defendant swears that he signed the acceptance before the owner signed the offer to sell and that the contraсt then did not provide for a note, but had been altered later, that he had subsequently compromised the matter with the owner, Cefalu, but had not paid а cent to any one, that three days after the contract, on his way to Notary Riftenberg’s office to deliver the property, he had been tоld by plaintiff there was a note, for the first time, and had protested.
Cefalu, thе prospective purchaser, swears that he signed the document bеfore Gehrsen and that the word “note” was then in
On cross-examination he says that he did not remember when the word “cash” was mаrked out and the word “note” written in, but later says, “I am positive I gave the notе at the date we closed the deal.”
Notary Rittenberg swears that Gehrsen and Cefalu came to his office to pass the act, but Gehrsen cоuldn’t get title to the property; that the matter was then compromised by Gehrsen’s agreement to pay his fees and .Cefalu’s agreeing to drop it; thаt subsequently Gehrsen did pay him about thirty or forty dollars.
Plaintiff swears that when the offer to buy was signed by Cefalu, before defendant had accepted, Cefalu marked out the word “title;” that the word “cash” was stricken out and the word “note” written in before defendant signed it and that he had (phoned and written defendаnt immediately stating that the offer had been accepted and the note signed and delivered tq him; that no objection had been made; that the word “note,” which was in Cefalu’s handwriting, had been put in before Gehrsen signed.
It is thus seen thаt defendant is contradicted by, Gehrsen, Cefalu and Attorney Rittenberg on important points. We agree with the judge below that he has failed to prove his special defense of alteration.
for these reasons the judgment is affirmed;