Spade v. Cossett

Plaintiff appeals from a judgment for the defendant in an action to recover a real estate broker’s commission for obtaining a purchaser of certain real property owned by defendant and her husband in joint tenancy.

The trial court found (1) that respondent signed a written deposit receipt agreement to sell the property and to pay appellant a commission of 5 per cent of the sale price, but delivered the document to appellant, the agent of respondent, upon the express agreement that the deposit receipt agreement (a) was not to be delivered to the purchaser or at all unless respondent’s husband agreed to the sale of the property and (b) was to terminate if her huband would not agree to sell the property for the price and upon the terms stated in the deposit receipt; and (2) that her husband did not at any time agree to sell.

The evidence amply supports the finding. A Mrs. George, in the employ of appellant, called on the respondent at the latter’s home on Saturday, July 9, 1949, and presented copies of a deposit receipt which already bore the signature of appellant and Ralph W. Scott, the prospective purchaser, and recited that Scott had made a $3,000 deposit. Mrs. George had already given Scott a copy of the receipt. Respondent’s daughter, Patricia, was present at this interview and testified that Mrs. George told respondent the Seotts wanted to buy the house, were also interested in another house, and respondent had better hurry up and sign; that respondent asked, “Well, if I do sign it, will it hold good if my husband refused to sign it?”; and Mrs. George said “No,” that she would

This evidence was competent and relevant. It did not vary the terms of the writing. It was used to show that the writing never took effect as the embodiment of an obligation, upon the familiar principle that evidence is admissible to show that the parties never intended a writing to constitute a contract (P. A. Smith Co. v. Muller, 201 Cal. 219 , 222 [ 256 P. 411 ]) or that the taking effect of the contract depended upon a condition precedent. (Severance v. Knight-Counihan Co., 29 Cal.2d 561 [ 177 P.2d 4 , 172 A.L.R. 1107 ], and Paratore v. Scharetg, 53 Cal.App.2d 710 , 713 [ 128 P.2d 560 ].) “ ' “A written contract must be in force as a binding obligation to make it subject to this [parol evidence] rule. Such a contract cannot become a binding obligation until it has been delivered. Its delivery may be absolute or conditional. If the latter, then it does not become a binding obligation until the condition upon which its delivery depends has been fulfilled.” ’ ” (Gleeson v. Dunn, 113 Cal.App. 347 , 351 [ 298 P. 119 ], quoting from Burke v. Dulaney, 153 U.S. 228 [ 14 S.Ct. 816 , 38 L.Ed. 698 ].)

Appellant argues that even if not authorized to deliver the deposit receipt agreement to the prospective purchaser, nevertheless, he earned his commission. He invokes the asserted analogy of the case in which an owner makes a firm commitment to sell, the agent finds a purchaser, and then ■the owner refuses to convey or his title proves defective. There is no analogy. Such an argument ignores or misconceives the very condition upon which the deposit receipt here involved was to become a contract, a condition which did not occur. In support of this argument, appellant construes some of the testimony and some of the remarks of oppos

The judgment appealed from is affirmed.

Peters, P. J., and Bray, J., concurred.