205 P. 890 | Cal. Ct. App. | 1922
Plaintiffs sued to recover the sum of five hundred dollars alleged in the complaint to be owing to them as a broker's commission earned upon the sale of certain real property. The appeal is from the judgment which was entered in favor of the defendants.
It is contended that the evidence presented at the trial court does not sustain the findings upon which the judgment is based. No testimony was offered on behalf of the defendants; hence the question of a conflict of the evidence does not arise. It is shown in the record that one of the plaintiffs, learning that defendants wanted to sell their flat-building in the city of Long Beach, communicated with defendant Mrs. Moody and ascertained that the property was for sale. The agent requested an exclusive agency on the property for three days, which was allowed by Mrs. Moody, the authorization to the agents being expressed on a card over the signature of Mrs. Moody. The terms of sale there expressed were a total consideration of eighteen thousand dollars, one-half in cash and one-half secured by mortgage. The commission agreed upon and in like manner expressed was five per cent on the first ten thousand dollars and two and one-half per cent on the balance of the sale price. Upon the following day the agents presented a proposed purchaser at the Moody house, when both defendants (husband and wife) were present. The proposed purchaser declined to pay eighteen thousand dollars but offered to pay seventeen thousand five hundred dollars, which price, we gather from the testimony, was agreed to by C. J. Moody. *500
The agent then conducted the proposed purchaser to a bank, where a deposit of one hundred dollars was made on account of the purchase price and an escrow agreement prepared and signed by the latter. This fact was communicated to defendant C. J. Moody, who then suggested a reduction of the amount of the commission, and the agents agreed to accept five hundred dollars. At the request of the agents, defendant C. J. Moody called at the bank, where the proposed purchaser's agreement and instructions had been deposited, and signed the escrow instructions. These instructions provided for entirely different terms as to payment of the purchase price than were expressed in the original authorization given by defendant Mrs. Moody to the agents. This agreement of the purchaser, instead of providing for a nine thousand dollar cash payment, provided for only two thousand five hundred dollars to be paid in cash; the remainder was to be secured by various mortgages. The escrow instructions directed the holder thereof to draw the instruments required, and contained the following clauses: "Buyer is to have possession on or before 30 days from date. $500.00 commission to be paid to Hargrave and Whitely from proceeds of escrow when completed." As far as the record shows, the escrow never was completed by either of the parties. The Moodys refused to execute a deed and the proposed purchaser apparently made no deposit of money in addition to the one hundred dollars which she left at the time she signed the instructions. The evidence does not show that defendant Mrs. Moody consented to the changed terms of sale as they were stated in the escrow instructions different from those expressed in her authorization to the agents. She did not sign the escrow instructions and could only become bound upon the theory that her husband was authorized as her agent to change those terms. There is no evidence that she did in any way either originally authorize, or afterward, ratify, the act of the husband. Section
[2] It is insisted nevertheless that defendant C. J. Moody should be held bound to pay the commission, notwithstanding that he had not given a written authorization to the agents as required to create a valid agency under the provisions of section
The judgment is affirmed.
Conrey, P. J., and Shaw, J., concurred.