273 P. 50 | Cal. Ct. App. | 1928
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *458
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *459
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *460
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *461 This is an action to recover a real estate broker's commission arising out of the sale of real estate. Judgment was entered in favor of both defendants and the plaintiffs appeal.
On February 1, 1923, F.M. Dimmick individually entered into an "exclusive agency contract" with Laack Williams by which they were employed for thirty days and until the agreement was canceled in writing to negotiate the sale of certain real property located at the northwest corner of Sixth and Westlake, in the city of Los Angeles, which real property the owner agreed to sell to such purchaser as the agents might procure within the time aforesaid, at the price of $100,000 net to the owner. The terms of sale *462 were to be $40,000 in cash, buyer to assume a mortgage of $60,000; and further terms were that the agents were appointed attorneys-in-fact of the owner with full power to execute an agreement of sale with any purchaser obtained within the time aforesaid, binding the owner to sell said property upon the terms aforesaid and to convey same to the purchaser by deed of grant and to furnish, without expense to the purchaser, a guarantee certificate of title showing title in the owner at the time of sale; also, that the agents should be entitled to a commission equivalent to the difference between the purchase price above specified and the price at which the agents might procure a purchaser, which commission the owner agreed to pay the agents when a purchaser was obtained; also, that said commission, at the option of the agents, might be retained by them out of the moneys of the owner coming into their possession on account of the purchase price; and that the title to said property then stood in the name of Lucile M. Dimmick. Later, after it became apparent that the plaintiffs would be unable to sell the property within the time agreed, Mr. Dimmick inserted a figure "5" after the figure "1" in the date of the contract, thereby giving an apparent additional ten days' life to the agreement, although, as heretofore stated, the agreement was to remain in effect until canceled in writing. The contract was signed "Lucile M. Dimmick, per F.M. Dimmick," and there was substantial evidence that Mr. Dimmick was not authorized in advance to append her name thereto; but it is the contention of the appellants, both that she ratified the contract and that the circumstances were such that she is estopped from denying her signature to the agreement. These matters will be hereafter discussed in this opinion.
After the execution of the contract the plaintiffs used their best efforts to sell the property, listing and advertising the same and showing it to prospective buyers.
In a few days the plaintiffs interested George A. Eastman in the property, and thereafter persuaded C.G. Becker to join him in the purchase of it. The contract of purchase was entered into on March 16, 1923, signed by the plaintiffs on behalf of the owner and by C.G. Becker as purchaser, and was designated a "sales deposit receipt." It complied in all respects with the terms upon which the *463 plaintiffs were authorized to sell the property, unless it were with respect to an escrow and with respect to the time within which the escrow was to be completed. These two matters will be taken up later. Eastman and Becker paid to Laack Williams $2,500 as part payment on the purchase price; but the transaction was handled in Becker's name, although Eastman in fact was interested in the purchase. On the same day Laack Williams mailed a letter addressed to both of the defendants and included a check for $1,000 payable to them. The check was dated March 16th and was cashed March 20th. It was payable to the order of both defendants and had on its face a notation "Deposit and part payment of Becker offer on northwest corner Sixth and Westlake." The letter which accompanied the check was addressed to both of the defendants. In it they were advised of the sale to Becker, and their attention was called to the fact that the sale was made under the exclusive agency contract given plaintiffs, dated February 15, 1923, and they were notified that the terms of the sale were those embodied in said exclusive agency contract; they were also advised that the necessary instructions to the title company, together with the necessary papers, would be submitted to them on the following day, and were told that the instructions provided that the escrow must be closed in the usual thirty days provided by the title company; they were also told that the $1,000 check was inclosed as deposit and part payment of the purchase price. On March 23, 1923, C.G. Becker assigned all his right, title, and interest in the contract of purchase to Eastman upon the payment to him of $1,250. On March 27th Laack Williams gave written escrow instructions to the Title Insurance Trust Company, and on the same day C.G. Becker, as purchaser, gave his instructions to the title company.
Two days later, March 29, 1923, defendant Dimmick and attorneys on behalf of both defendants called at the office of plaintiff Ralph O. Williams. At that conference Mr. Dimmick tendered a deed executed by both of the defendants conveying the property described in the exclusive agency contract and in the sales deposit receipt to C.G. Becker. At the same time a certificate of title to the property, "brought down to date," was tendered to the plaintiffs. Defendants did not introduce this certificate in evidence and *464 it is not in the record. Later in the conference said Williams was served with a written notice addressed to Laack Williams of the cancellation of the agency contract. This notice was signed by both defendants, and at the same conference Mr. Dimmick offered to return the $1,000. The next day, March 30, 1923, plaintiffs addressed a letter to both defendants inclosing escrow instructions dated March 27, 1923, for their signatures, and respondents received this letter on the day it was mailed. On April 12, 1923, the full amount of money necessary to complete the deal, $46,250, was deposited with the title company, as escrow-holder, to complete the purchase, and on the same day the plaintiffs wrote the defendants a letter in which they advised them that on that day the purchasers had placed with the title company the necessary cash to complete the sale under the contract and demanded that the respondent immediately place in said escrow, of which they had theretofore been advised, the deed and certificate of title. Six days after the money was so deposited the attorneys for the defendants wrote a letter to the plaintiffs, reminding them that Mr. Dimmick had tendered a deed to the property described in plaintiffs' letter of April 12th, and had given them ample time to make good on the purchase price thereof. In the same letter they also referred to the purchaser as a dummy purchaser and refused to go ahead with the deal. It will be noted that at this time all of the money was in escrow and the refusal is in a letter in which there is a reference to appellants' letter of April 12th, in which the Dimmicks were notified that the money had been deposited with the title company. On May 8, 1923, Becker and Eastman tendered performance on their part through escrow, and finally, on May 23d, upon Dimmicks' refusal to proceed, the escrow was closed and all moneys withdrawn.
The complaint alleged that both the defendants entered into the exclusive agency contract and the court found that defendant F.M. Dimmick entered into the same and that "said F.M. Dimmick at the same time signed the said agreement with defendant Lucile M. Dimmick's name by himself, without authority." The court further found "that at the time of the execution of said agreement (sales deposit receipt or contract of sale dated March 16, 1923) by said Laack Williams and said C.G. Becker, said C.G. *465 Becker was not ready or able to purchase the said property by the payment of $40,000 cash therefor, and at no time or at all did C.G. Becker or George A. Eastman or anyone else ever agree to buy the said property for the sum of $40,000 cash and the assumption of a $60,000 mortgage thereon, or in accordance with the terms and conditions of the agreement (exclusive agency contract) marked Exhibit A and attached to said complaint; and that said George A. Eastman at the time of the execution of said contract (of sale of March 16, 1923) above set out in haec verba, was not able or ready to purchase said property by himself or in connection with said C.G. Becker, and said C.G. Becker would have been obliged to sell and dispose of certain securities before he would have been ready or able to purchase said property upon any terms whatsoever, and said George A. Eastman would have had to sell certain real property before he would have been ready or able to consummate said sale in accordance with the terms of the contract marked Exhibit A; [therefore] it is not true that said plaintiffs obtained as purchaser for said property any person who was ready or willing or able to carry out and perform the terms and conditions upon which said property could have been sold by said plaintiffs."
The findings of the court were such that judgment should have been entered in favor of the plaintiffs against both of the defendants for the full amount prayed for, except a necessary finding that Mrs. Lucile M. Dimmick was bound by the exclusive agency contract and a finding that the purchaser or purchasers were ready, willing, and able to buy upon the terms set forth in the contract of employment; and as to both of said matters we have set out above the findings of the court substantially in full.
Two questions are before us for consideration: First. Was the exclusive agency contract binding on defendant Lucile M. Dimmick, either by reason of ratification or by way of estoppel? Second. Was the purchaser whom plaintiffs obtained for the defendants able, ready, and willing to purchase the property on the terms for which defendants had authorized the plaintiffs to sell?
In addition to the matters heretofore set out, there are other facts and circumstances in evidence bearing upon the question whether or not the exclusive agency contract was *466 binding on Mrs. Dimmick. On March 29, 1923, she authorized her husband and her attorneys as her agents to tender to the plaintiffs a deed to the property which she herself had signed. On the afternoon of that date they tendered to one of the plaintiffs this deed, together with a certificate of title. And upon his failure to produce $40,000 in cash forthwith, presumably out of a blue sky, they served upon him the following writing, which Mrs. Dimmick had also signed for the purpose:
"You are hereby notified that the exclusive agency contract executed by the undersigned Lucile Dimmick . . . to you, dated February 1st, 1923, . . . is hereby cancelled and revoked.
"(Signed) FRANK M. DIMMICK. "(Signed) LUCILE M. DIMMICK."
This was not a repudiation of the due execution of the exclusive agency contract, but a direct acknowledgment of it in writing. Furthermore, this acknowledgment, in the light of the tender of the deed which preceded it, was a ratification in writing of the contract down to the time of the revocation of it. Or if it be not a clear ratification in writing, then it is so nearly such that it will weigh heavily in the scales on the question of whether Mrs. Dimmick was estopped from denying the due execution of the contract. This we will next consider.
[1] It is the law of California that a ratification can be made only in the manner that would have been necessary to confer an original authority for the act ratified. (Civ. Code, sec.
[3] In this case the brokers went ahead under the terms of their contract, assuming that it was entered into by authority of Mrs. Dimmick. They spent much time and money in finding a purchaser. They bound the purchaser in a written instrument to purchase the property and took his money as a deposit on the purchase price. They sent $1,000 to Mr. and Mrs. Dimmick as a part of the purchase price and defendants retained the same. Mrs. Dimmick signed a deed conveying the property to the purchaser, and insisted upon the payment of the balance of the purchase price forthwith. She acknowledged in writing the execution of the contract as binding upon her, and in the same writing revoked and canceled the same. She was not depending upon the statute of frauds at that time. Rather she was seeking a stealthier method of escape from performance on her part of a solemn covenant which had already been performed in full by the other parties to it. To permit her thereafter to escape by the avenue of the statute of frauds would be to permit the perpetration of a fraud. Our courts will not sanction such a procedure.
[4] Respondents contend that to properly establish either a ratification or an estoppel, the action of Mr. and Mrs. Dimmick must have been predicated upon a full understanding of the facts (citing Schader v. White,
The question whether the purchaser whom the plaintiffs obtained for the defendants was able, ready, and willing to purchase the property on the terms for which defendants had authorized the plaintiffs to sell, easily divides itself into two parts. (a) Was the purchaser able to buy the property, and (b) was he ready and willing to buy the property on the terms for which defendants had authorized the plaintiffs to sell?
[17] It is the contention of defendants that "under the circumstances of the instant case it is apparent that the purchaser must not only be ready at the time of his announced desire to purchase, but continue to be able to respond as and when the seller presents his deed and certificate of title." It seems to be the idea of defendants that in order for a purchaser to be able to buy he must have the purchase price on hand in the form of money or to his credit at a bank at the time of his announced desire to purchase the property, and continue to keep it ready to respond as and when the seller presents his deed and certificate of title. Even at the time of the tender of the deed the defendant Dimmick spoke up and said: "You can't buy this property. You haven't got the $40,000 here today." Such is not the law in California. That "would be to lay down too drastic a rule governing business transactions of the kind presented." (Russell v. Ramm,
[20] Measured by the rules above set forth, both Mr. Becker and Mr. Eastman under the evidence were able to purchase the property, and there was no evidence to the contrary. Mr. Becker testified that he could have paid the purchase price on the day the contract was signed upon presentation to him of the deed and certificate of title; that his ability to have met the purchase price would not necessarily have depended upon someone else lending him the money; he had mortgages and clear land; he could have sold his mortgages and he could have sold his land; Mr. Eastman had just sold property on Berendo Street for $110,000; he (Becker) had personally sold over ten million dollars' worth of property, and it had always been agreed and understood that a man was to have time to effect title; he would not pay $40,000 or $50,000 over to someone whom he did not know anything about, or when he did not know whether the title was all right without going through escrow. Mr. Eastman testified that Mr. Becker told him prior to the assignment that the discount asked on his mortgages was so big that he did not wish to sacrifice, and asked him to carry the deal, which he agreed to do, and thereupon the written assignment was made; that on April 12th he deposited the $46,250 in escrow; that if he had known on *472 March 29th that a tender was to be made to him, it would probably have taken him a day or two to raise the money to close the deal, and in that case he would have taken steps to raise the money and could have used the other escrow (Berendo Street) as collateral. It is the sole contention of respondents in this regard that because Becker expressed an intention to "discount his securities in San Francisco" and because Eastman "had to sell some of his property or negotiate a loan," it is apparent that neither or both were able to pay $40,000 cash. But the cost or inconvenience to the purchaser of raising money is immaterial to the seller, provided the purchaser is able to command the money. Cases which seem to lay down a different doctrine are usually cases in which the purchaser has not assets sufficient to command the purchase price or cases where this distinction is not fully discerned.
[21] There is another reason why it was not necessary for the purchasers to have the cash on their persons at the very instant of the tender of the deed. This reason is best stated in the words of respondents' brief, which are in bold black type, as follows: "Tender of March 29, 1923, was in Effect a Repudiation of Laack Williams' Claimed Right to Make Contract Disclosed by Sales Deposit Receipt." The repudiation of defendants at that time was not based on the inability of the purchasers to complete the purchase, but upon the precedent requisite — the right of the plaintiffs to make the contract of sale. Such repudiation rendered it unnecessary for the purchasers to tender the cash required to bind the sale. (Merzoian v. Kludjian,
[22] Were the purchasers ready and willing to purchase the property on the terms for which defendants had authorized the plaintiffs to sell? This is the final question for consideration. The readiness and willingness of a person to purchase is shown where he enters into a contract binding him to purchase. (4 Cal. Jur. 592, and cases cited.) And it remains only to consider whether the terms of the sales deposit receipt were authorized by the exclusive agency contract. *473 [23] One of the contentions of respondents in this regard is stated as follows: "The brokers were hired to make a sale within thirty days, and not an agreement of sale, and if an agreement of sale was made, it was essential that the sale itself actually take place within the time limit of the contract." We have set out the terms of this contract regarding this matter in full in the early part of this opinion. The contract speaks plainly for itself. It does not so read.
[24] Another contention of respondents is that "the contract executed by Laack Williams was not authorized because the buyer was given a thirty-day option with many other advantages." But here again the contract of sale speaks for itself. It was not an option to buy, but a binding contract of sale; it was not for thirty days, but was a contract for cash payable within a reasonable time, as we have heretofore seen; the thirty-day clause being a mere forfeiture clause against the purchaser declaring a dead line beyond which a reasonable time might not extend; and there were not many other advantages or any other advantages, as we have also seen.
[25] The final contention of respondents in this regard and the one most relied upon is this: that "a transfer through escrow was not contemplated by the agency agreement." This is the last trench to which respondents run for cover from the assaults which are hurled against the judgment of the trial court. By the exclusive agency contract the plaintiffs were authorized to execute in behalf of the defendants an agreement of sale binding the owners to convey the property to the purchaser "and to furnish, without expense to the purchaser, a guarantee certificate of title showing title in the owner at the time ofsale free and clear," etc. [26] The fundamental difference between a sale and an agreement to sell is that in the former the title passes when the contract is made, while in the latter it does not pass until later. (Rosenberg Bros. Co. v. Beales,
[29] While the contract of employment made the positive statement that the property was owned by the wife *475 and for that reason it was made in the name of the wife and signed by her husband as agent, yet it developed at the trial, and the court found the fact to be, that the property was owned by husband and wife in joint tenancy. To permit the husband to escape liability under the contract upon the theory that he was not a party to it, when his sole reason for attaching his wife's name to it and not his own as principal was the false one that his wife was the sole owner of the property, would be to permit the husband to profit by his own fraud. Our courts are not so inefficient nor so futile in their efforts to dispense justice between litigants that they would permit this. To do so would be not dispensing justice but dispensing with it.
[30] The findings of fact of the trial court which have been quoted in this opinion within quotation marks are hereby set aside. This court finds that the exclusive agency contract, dated February 15, 1923, is binding on the defendant Lucile M. Dimmick and that she is estopped to deny the authority of her husband to sign the contract for her. This court further finds that the plaintiffs found purchasers for the defendants who were able, ready, and willing to purchase the property on terms for which defendants had authorized the plaintiffs to sell, and the plaintiffs are entitled to their commission.
For the reasons given, the judgment is reversed, with directions to the trial court to enter a judgment in favor of the plaintiffs against both defendants in the sum of seventy-two hundred and fifty ($7250) dollars, with interest from April 12, 1923.
Houser, Acting P.J., and York, J., concurred. *476