Austin v. Richards

• Decision Date: 30 November 1956
• Court: California Court of Appeals Court of Appeals
• Parties: E. Clarke AUSTIN, Plaintiff and Respondent, v. Agnes M. RICHARDS, Defendant and Appellant. Civ. 21658.

Page 132

304 P.2d 132

146 Cal.App.2d 436

E. Clarke AUSTIN, Plaintiff and Respondent, v. Agnes M. RICHARDS, Defendant and Appellant.

Civ. 21658.

District Court of Appeal, Second District, Division 3, California.

Nov. 30, 1956.

Hearing Denied Jan. 23, 1957.

Russell E. Parsons, Beverly Hills, for appellant.

Robert C. Mardian, of Boyle, Bissell & Atwill, Pasadena, for respondent.

VALLEE, Justice.

Appeal by defendant from a judgment for plaintiff in an action to recover a real estate broker's commission.

Defendant was the owner of a parcel of improved realty. On March 6, 1954, by an instrument in writing, defendant granted plaintiff, a licensed real estate broker, 'the exclusive and irrevocable right' to sell the property for $350,000 on terms of 'Cash or acceptable to Seller,' in consideration of which she agreed to pay plaintiff a commission of 5 per cent of the purchase price.

In May plaintiff received an inquiry in answer to an advertisement from a Mr. Gerhardt, a resident of New Jersey. Gerhardt came to California and examined the property with defendant, and the two entered into negotiations. On June 7, 1954 defendant and Gerhardt entered into a witten agreement whereby defendant agreed to sell and Gerhardt to buy the property for $310,000, payable $90,000 in cash and the balance at the rate of $1,300 a month without interest. In the contract defendant agreed to pay plaintiff as commission the sum of '$10,000.00-$5,000.00 on close of Escrow $5,000.00 Jan 4 1955 (Note.).' Plaintiff initialed this provision as 'OK.' On the following day an escrow was opened on joint escrow instructions signed by defendant and Gerhardt which called for performance on or before August 1, 1954. The escrow instructions contained the following: 'Commission: payable as follows:--$5,000.00 at close of escrow & $5,000.00 on January 4, 1955, the seller will execute a personal note for second payment on commission without interest,' and 'Commission is acceptable in full settlement. E. C. Austin.'

On June 25, 1954 defendant gave Gerhardt a notice of rescission of the contract on the grounds of fraud purportedly practiced on her by Gerhardt.

The complaint alleged the foregoing facts. The answer admitted them, denied plaintiff had performed all the conditions and agreements on his part to be performed, denied that anything was due or owing, and admitted defendant had not paid plaintiff any sum. The answer set up three affirmative defenses: 1. The complaint does not state facts sufficient to constitute a cause of action. 2. The contract to pay a commission was procured by fraud of plaintiff and the contract to sell was procured by fraud of Gerhardt, aided and abetted by plaintiff. 3. The consideration for the purchase was inadequate. The court found for plaintiff on all issues, except it found that the consideration for the purchase was inadequate but plaintiff was not responsible therefor. Judgment was for plaintiff in the sum of $10,000, from which defendant appeals.

It is asserted the evidence does not support the finding that plaintiff was free and clear of any fraud, misrepresentation, or overreaching. The point is untenable. The short of the matter is that the evidence on the point was conflicting. The bone of contention is merely the evaluation of that evidence. There was evidence which sustains the finding. There was other evidence from which the court could have reached a different conclusion. 'As Mr. Justice McComb stated in Marson v. Rand, 107 Cal.App.2d 466, 468, 237 P.2d 18, 20: "It is not the province of a reviewing court to present, by way of opinion, a detailed argument on the sufficiency of the evidence to support the judgment, where it appears that the question is one purely of determining which side shall be believed. The trial court having determined this with the witnesses before it, the controversy is settled."' Gillespie v. Gillespie, 121 Cal.App.2d 95, 97, 262 P.2d 607, 608; Sonkin v Hershon, 130 Cal.App.2d 491, 492, 279 P.2d 156. This court may not set aside the trial court's finding because it might have reached a different conclusion.

The court found that the consideration for the sale was inadequate, and '[t]he court finds that although such difference between the value of the property and the cash value of the consideration on June 7, 1954 might render the transaction unfair, unjust and inequitable as between said Agnes M. Richards and the purchaser Leon Gerhardt so as to preclude the specific performance of said contract at the instance of said purchaser, that the plaintiff was in no way responsible for such unfairness, injustice or inequity or for any inadequacy of consideration and the transaction was agreed to and accepted by the seller, the defendant Agnes M. Richards, with full knowledge of its terms and effects and there was nothing unfair, unjust or inequitable in the transaction as between the plaintiff and the defendant.' Defendant asserts the inadequacy of the purchase price...