Caine v. Briscoe

The plaintiff brought this action to recover a judgment from the defendant for the sum of $10,000, alleged to be the amount of the compensation which defendant agreed to pay plaintiff for negotiating the sale of certain real property and certain personal property be- ° longing to the former. The issues of fact were tried by a jury, who returned a verdict in favor of plaintiff for the sum of $4,000. Judgment was entered accordingly and

The real property involved herein consists of 120 acres, with improvements, the property of defendant, and is situated in Fresno County. Eighty acres of the land, at the time of the negotiations herein concerned, were in producing grape-vines of the Alicante variety and forty acres in producing grape-vines of the Thompson variety.

In July, 1922, the defendant Briscoe entered into a written agreement with C. L. Caine, plaintiff, a real estate broker of the city of Fresno, authorizing said Caine to sell said property. Said agreement is, in part, as follows:

“Fresno, Calif., July 22nd, 1922.

“I hereby appoint C. L. Caine Co. of Fresno, my agent with exclusive right to sell the property described on the reverse side of this card, for the price and under conditions hereon described or for any less amount hereafter authorized by me, and receive deposit on the same. I agree to furnish deed and abstract showing clear title in me to date, and should C. L. Caine Co. sell such property or be instrumental in selling the same, I agree to pay them. And for and in consideration of the sum of one dollar paid to me by C. L. Caine Co. receipt of which is hereby acknowledged, I do hereby grant to said C. L. Caine Co. during the life of this agreement the exclusive option to buy said property for said price, less the amount of said commission, and upon said terms and conditions.

“This authorization is to remain in full force and effect for 5 days only. $10,000.00 Com.

“Name: E. V. Bkiscoe

“Address: Kerman, R. R. 2, Box 79

“Phone

The “reverse side” of said agreement contained a description of the real property, the several buildings, including the residence, situated thereon and an enumeration of various articles of personal property—equipments commonly employed in the cultivation0 and growing of grapes, also wagon, horses, other cattle, chickens, etc. The terms were: “Cash $50,000.00; ■ Balance, $50,000.00 every year; $50,000.00 out of this years crop above $240,000.00, Jan. 1, 1923.”

“$15,000.00 cash (including the amount herein receipted for) upon the execution and delivery of a good and sufficient deed or contract for a deed conveying said property to purchasers, together with abstract or certificate of title, to be furnished at the owner’s expense, showing title to said property to be in the said owner, free and clear of all incumbrances whatsoever, except as otherwise herein expressly stated.

“Balance of the purchase price to be secured and paid as follows: By contract payable $35,000.00 October 15th, 1922. It is understood that this $35,000.00 will be secured by promissory notes made in the sum of $1000.00 each from the date that the first car of grapes reaches its destination, then the balance of the notes shall become due in forty-five days. Purchasers agree to make a payment of $50,000.00 on January 1, 1923. Balance of $170,000.00 shall be paid on the following terms: $50,000.00 in 1924, January 1, and $50,000.00, each year thereafter until the purchase price has been paid. It is further agreed that the seller will guarantee 1922 crops to be 800 tons of green grapes on the above described property. It is understood that in ease a frost shall damage the crops growing on the above described property to make less than 400 tons of green grapes second party for that year only shall pay interest and no principal.

“Time is made of the essence of this agreement and it is understood and agreed that the sale of said property upon the terms herein set forth is subject to the approval of the owner of said property, but that said terms and conditions shall be agreed to and accepted by said owner within three days from this date or the deposit herein re

“If the purchaser does not complete the purchase as hereinbefore provided within five (5) days after notice from the owner of his ability and readiness to convey said property as herein provided, then the said deposit shall be forfeited as liquidated damages, and it shall thereupon be paid, less the commission of the undersigned agents, to the owner.” (Signed by buyers.)

The terms of said offer were, immediately, or on the same day that the offer was executed, accepted in writing by defendant, the same being indorsed or written on the sheet or sheets of paper containing the offer itself. The acceptance was in the following language:

“I hereby agree to all the conditions herein contained.

“Telephone - Address ,

“I hereby accept the above price and terms, and agree to execute and deliver a good and sufficient deed or contract for a deed conveying said property to said purchaser as above stated, together with Abstract or Certificate of Title showing title to said property to be free and clear from all incumbrances except as otherwise herein expressly stated, and I further agree to pay C. L. Caine Co. $10,-000.00 as their commission for negotiating said sale.

“Telephone “E. V. Briscoe, Owner

“Address

“Duplicate”

The above documents were prepared in triplicate, one being retained by the buyers, one by the seller (defendant) and the third by the plaintiff. For reasons to be hereinafter explained, the defendant refused to convey the properties to the buyers.

The foregoing embraces a general statement of the facts. They are substantially so stated in the complaint, together with the allegation that the plaintiff, after being authorized as indicated to negotiate the sale of the properties, procured, within the time specified in the authorization, purchasers ready, willing and able to purchase the same on the terms prescribed by and in the writing last referred to.

The answer denies the averments of the complaint, except as to the writing vesting plaintiff with the authority

: The defense thus set up presents the point first relied upon for a reversal by defendant. The second point urged is that the written offer and acceptance (exhibit B) “contemplated an additional and complete agreement between the parties when, and when only, the sale -would be completed, and that the purchasers found by respondent were

The point first adverted to arises out of the following circumstance: Within a few minutes (fifteen or twenty) after “Exhibit B” and the acceptance of the terms thereof were executed, respectively, by the buyers and the defendant, the latter, with Faith, entered another and separate room from that in which the documents were executed, and there entered into and executed a writing, the nature of the real tenor of which is in dispute. This writing, which was upon a “slip of paper,” could not, after this action was instituted by plaintiff, be found, and was, therefore, not available at the trial, although defendant, so he testified, attached it to “Exhibit B,” and delivered it as so attached to his attorneys. The loss of the “slip” having been shown, an attempt was made to prove the contents thereof by parol. The defendant testified that said writing embraced an agreement between him and Faith to the effect that the sale should not be consummated until he, after a reasonable time, was able to secure a report from New York on the financial responsibility of the buyers to purchase the properties and fulfill in every material particular the terms of “Exhibit B.”

Mark Hall, assistant cashier of the Valley Bank of Fresno, but at the time the transactions involved herein were in progress holding a like position in the Fidelity Bank, of the same place, testified that he was familiar to some extent with said transactions; that, while he never saw the “slip of paper” containing an agreement between Briscoe and Faith to the effect that the former, before consummating the sale, was to be accorded an opportunity to investigate the financial standing of Albino and his partners in New York, he had, nevertheless, heard it discussed by Faith and Briscoe, and, in effect, he said, from such discussion, understood that such an agreement was contained in said “slip,” signed by Faith and Briscoe.

[1] Faith testified that, within a short time after “Exhibit B” was executed by Briscoe and the buyers, he and the former stepped into an adjoining room primarily for the purpose of discussing the matter of the time at which

[3] In other words, secondary proof of the contents of a written instrument imposing duties or obligations upon the parties thereto should be clear or not of a doubtful character in probative worth. Whether, therefore, we say that the testimony of Faith appears to be sufficient to have justly warranted the jury in concluding that the burden upon defendant to prove said special defense had not been satisfactorily supported or that Faith’s testimony was such as to create in the evidence upon the question involved in said defense a substantial conflict, the result is the same. The trial court specifically instructed the jury upon the question and to the effect that if they found from the evidence that the plaintiff and defendant agreed in writing that the last named should have a reasonable time within which to inquire into and ascertain “the financial standing and worth of the purchasers,” that defendant signed the contract to sell on the condition that he be given the opportunity to prosecute such inquiry, and that, upon making such inquiry, he' “notified plaintiff that he was not satisfied with the financial responsibility of the purchasers,” then the “contract to pay (plaintiff) the commission never became effective.” The court further in

[4] Thus the special defense in question was directly submitted to the jury, and the verdict necessarily implies a finding by the jury that the writing executed by Briscoe and Faith immediately after “Exhibit B” was executed by the buyers and Briscoe contained no stipulation giving to Briscoe the right or an opportunity to investigate the financial standing of Albino and his copartners before the terms of said “Exhibit B” were to become binding upon Briscoe. The situation as it is presented to this court, then, is this: That Briscoe, without previously raising any objection to the proposed purchasers, either upon the ground that they were not possessed of the financial ability to carry out the deal or upon the ground that they were not willing to do so, entered into an agreement to sell the properties to the buyers and accepted their check for $5,000 as a payment. There was and is no claim made by defendant that he was induced to accept the offer of the buyers to purchase the properties by any act of fraud on the part of the plaintiff or that such acceptance was brought about through a mutual mistake regarding the facts or the terms of the offer. Hence, the case, so far as the present point is concerned, falls within the rule stated as follows in 4 Ruling Case Law, page 309: “Once the customer procured by the broker is accepted by the employer, the latter is thereafter estopped from denying the purchaser’s ability or willingness to complete the contract, inasmuch as he is not bound to accept the offer of such person without a reasonable opportunity to inquire and satisfy himself in relation to it. Consequently his acceptance should estop him from alleging anything against the claim except fraud on the part of the broker in inducing the acceptance.”

The said rule has been approved by a number of California cases, among which are Carrington v. Smithers, 26

[5] It is next contended that plaintiff is not entitled to recover in this action because, as is the claim, the contract of sale was rescinded by the mutual agreement of the buyers and the defendant, and that the plaintiff, in the transaction culminating in the rescission, agreed to waive any right he might have to a commission from defendant for negotiating the sale of the properties. This proposition was set up in the answer as a special defense. Upon that issue the evidence was in sharp conflict, and the court specifically instructed the jury that, if they should believe from the evidence that plaintiff; as alleged in the answer, waived his right to compensation for procuring purchasers of the property, it would be their duty to find for defendant and also stated the converse of that proposition. It follows that the implication from the verdict is that the jury concluded that the plaintiff made no such waiver, and this conclusion is conclusive upon this court.

In view of the foregoing considerations, it is not necessary that we should minutely examine herein the testimony disclosing the controversy which led to a refusal by the defendant to perform the terms of the contract of sale. It is enough to say that defendant claimed that a report he received as to the financial ability of the buyers to carry out the contract on their part was unsatisfactory to him; that, after much bickering between the defendant and the buyers followed the execution of ‘1 Exhibit B,” it was finally agreed that the contract of sale should be rescinded upon the payment by the defendant to the buyers of the sum of $750, and that said agreement was carried out. Albino testified that he and his copartners were at all times able and willing to purchase the properties upon the terms set forth in “Exhibit B.” One Luscher testified that, just prior to the time when the agreement of sale was canceled by the parties, he met the defendant in plaintiff’s office; that he then said to defendant: “I heard you sold your .place out at Biola,” to which defendant replied

[6] The point that the language of “Exhibit B” clearly indicates that before the sale should be completed the parties contemplated and intended that an additional agreement involving or amounting to an actual sale of the properties should be executed, that plaintiff’s right to the specified commission depended entirely upon the execution by the parties of such contract of sale, and that, no such contract having been executed, the plaintiff, therefore, did not earn the commission prescribed, is without merit. The plaintiff’s obligation was to negotiate a sale of the properties, or to be “instrumental in selling the same.” He procured purchasers ready, willing, and able to buy the properties, and but for the act or acts of the defendant the sale would have been effected according to the defendant’s own terms. [7] Indeed, the offer of Albino and his copartners to buy the properties at the price and on the terms set forth in the writing designated in the record and herein as “Exhibit B” and the written acceptance of said offer and the terms thereof by defendant, constituted an agreement of sale. The execution of a deed of conveyance by defendant to the buyers was not required as a prerequisite to the right of plaintiff to claim and recover his commission. As above suggested, the failure to consummate the deal, as we are authorized to assume from the verdict, was due entirely to the defendant, and his failure to perform in full his part of the contract cannot have the effect of denying to the plaintiff his right to the compensation for the services he rendered defendant as the same was fixed by the agreement between them.

The judgment is affirmed.

Plummer, J., and Finch, P. J., concurred.