Buckley v. Savage

• Decision Date: 22 August 1960
• Citation: 7 Cal.Rptr. 328,184 Cal.App.2d 18
• Court: California Court of Appeals Court of Appeals
• Parties: F. J. BUCKLEY, doing business under the fictitious firm name and style of F. J. Buckley & Co., Plaintiff and Appellant, v. Wynne A. SAVAGE, as Real Estate Commissioner of the State of California, Defendant and Respondent. Civ. 24278.

Page 328

7 Cal.Rptr. 328

184 Cal.App.2d 18

F. J. BUCKLEY, doing business under the fictitious firm name and style of F. J. Buckley & Co., Plaintiff and Appellant, v. Wynne A. SAVAGE, as Real Estate Commissioner of the State of California, Defendant and Respondent.

Civ. 24278.

District Court of Appeal, Second District, Division 1, California.

Aug. 22, 1960.

Rehearing Denied Sept. 12, 1960.

Hearing Denied Oct. 19, 1960.

Wolver & Wolver, David H. Cannon, J. Marion Wright, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., Arthur C. DeGoede, Deputy Atty. Gen., for respondent.

FOURT, Acting Presiding Justice.

This is an appeal from a judgment denying the appellant's petition for a writ of mandate.

Appellant was a real estate broker. His license as such was revoked by the respondent, and appellant thereafter filed his petition for a writ of mandate to compel the respondent to desist from any action upon the decision and order revoking the license of appellant as a real estate broker and to revoke the order of revocation and to reinstate the appellant as a real estate broker. From the judgment denying the petition, the appellant has appealed.

In an accusation filed by respondent the appellant was charged with violating the provisions of certain sections of the Business and Professions Code. ¹

(1) Section 10176(a)--Making substantial misrepresentations; (2) Section 10176(d)--Acting for more than one party in a transaction without the knowledge or consent of all parties thereto; (3) Section 10176(g)--Taking of a secret or undisclosed amount of compensation, commission or profit; (4) Section 10176(i)--Conducting himself in a manner which constitutes fraud or dishonest dealings; (5) Section 10177(d)--Willfully disregarding provisions of the Real Estate Law and rules and regulations of the Real Estate Commissioner; (6) Section 10177(f)--Conducting himself in a manner which would have warranted the denial of an application for a real estate license; and (7) Section 10177(g)--Demonstrating negligence, or incompetence in performing an act for which he is required to hold a license.

The accusation came about from a transaction whereby Buckley used a 'dummy', Germaine S. Chambreau, to purchase certain property from Margaret F. Slusher.

A resume of some of the facts as developed in the administrative hearing is as follows:

In March, 1955, Buckley observed that the Slusher property, which was located around the corner from his real estate office, was vacant. He contacted Mrs. Slusher and obtained a listing to sell the place. He represented that he had been a realtor on Wilshire Boulevard for many years and that he had many inquiries about the property. He further stated that he had one client who was interested because the property was large and had six bedrooms. Mrs. Slusher stated that she had not thought particularly of selling the property but that she would and that she had been offered $35,000 for it some five years ago and that she would sell it for that figure, including a five percent commission. Buckley stated that he could secure $35,000 to $37,500 for it and that the commission would be five percent. Mrs. Slusher would not give a written exclusive listing but she did give an oral exclusive listing for 60 days while certain painting and renovating work was being done in and on the property. Buckley stated that he would ask $37,500 in an attempt to get $35,000 and he received a key to the property from Mrs. Slusher at that time.

In a letter on his stationery under date of March 17, 1955 to Mrs. Slusher, Buckley stated in part:

'May I not also thank you for letting us have the exclusive agency on your property at 674 South Crenshaw for $35,000 with $10,000, or more, down payment, and the balance, if any, payable 1% per month including interest at 6%, until paid.

'* * * I am confident we will be successful in selling it for you. In order to obtain $35,000, including our commission, I have quoted it at $37,500 because frequently they offer less than the amount of the asking price. If, perchance, we received more than $35,000 you are assured our commission would be only 5% and you would receive the benefit of the excess, if any.

* * *

* * *

'I did want you to know that I have been doing some work on your properties, although I took some time out today, St. Patrick's Day, to meet the Irish Ambassador, and expect to see him again at the California Club tonight.'

Buckley told his office employees that he was trying to sell the place and he showed the premises to several prospective buyers. When the painters were about to finish their work at which time about 60 days had elapsed from the date of the exclusive listing, Buckley and Mrs. Slusher met at her home and Buckley stated that he knew he could sell the place but that it had been difficult to show it while the workmen were present and working. Buckley asked for and received an indefinite extension of time in which to sell the property. He continued his efforts to sell the place after the workmen had left. Buckley then went East for two or three weeks in May, 1955 and after his return to California in June he showed the place to some prospective buyers and also began to think of buying the property for himself.

About July 1, 1955 Buckley decided to buy the property for himself and contacted a widow named Germaine S. Chambreau, whom he had known for some years. Mrs. Chambreau signed a letter to Buckley which reads as follows:

'In offering to purchase the property at 674 S. Crenshaw, Los Angeles, or any other property, it is not for my account but for the account of E. Haiss, whom (sic) is advancing all of the money required.

'I have no present or future interest in the property and if I should acquire title I will convey it to any person designated by E. Haiss.

'Of course it is understood that I am to be held free and harmless from all expense and liability in connection with the transaction.

'Very truly yours,

'/S/ G. S. Chambreau

'G. S. Chambrau

'I agree to hold you free and harmless from all expense and liability in connection with the transaction.

'/S/ F. J. Buckley

'F. J. Buckley'

About August 1, 1955 Mrs. Slusher went to Buckley's office to get the key to her property as she had forgotten to bring her own key. A lady and a salesman at the office of Buckley told her that the Susher property was not listed with them. The key to the property could not be found at that time. However, later the lady came by the Slusher property and brought the key with her, stating that Buckley had several keys and that Mrs. Slusher might keep the one which was then given to her. Later that same day Mrs. Slusher called Buckley on the telephone and told him the property was not listed at his office, that the house had been broken into and that if the property was not sold within the next week she would have to rent it. Buckley told her that the property would be sold in a week or two and that a man who was out of the city just then was trying to raise money with which to buy the property.

Buckley told Mrs. Chambreau that he had come to the end of the time for the sale of the property and that he should produce an offer with which to get an extension. On August 9, 1955 Mrs. Chambreau signed what she was told was an offer to buy the property. In fact what Mrs. Chambreau signed on August 9 was a 'Deposit Receipt' which showed that $1,000 had been received from her as a deposit on the purchase price of $33,000 for the property, the balance to be paid as follows: $9,000 in cash in escrow upon demand when title was ready to pass and $23,000 by the execution of a note secured by a deed of trust on the property payable at the rate of $200 per month. On August 9, the day before an escrow was opened, Buckley told Mrs. Slusher that he had an offer of $33,000 cash on her property from a gentleman whom he did not name and read to her a check in the amount of $1,000 payable to F. J. Buckley and Co., as a deposit. Buckley answered Mrs. Slusher's inquiry about why the check was made in favor of Buckley and Co. by saying that such was frequently done. Mrs. Slusher agreed to take $33,000 instead of the $35,000 or $37,500 theretofore spoken of. At Buckley's request the escrow was to be at the Wilshire Escrow Co. rather than with the Title Insurance and Trust Co. which Mrs. Slusher preferred.

On the same day Buckley dictated certain escrow instructions to an escrow officer at the Wilshire Escrow Co. These instructions called for a sales price of $31,350, payable $8,350 cash and $23,000 by a note payable $200 per month and secured by a deed of trust on the property. At Buckley's request Mrs. Chambreau signed the escrow instructions without knowing that they were instruments for the purchase of property by her. She had no intention of purchasing anything. She also signed a note and deed of trust in the transaction without any intent to perform any of the obligations and she never gave any money to Buckley nor did she place any money in the escrow for the purchase of the property. Buckley told Mrs. Chambreau that all of the last mentioned documents referred to the offer. She asked to read the instruments but was told by Buckley that she would not understand them and to trust him.

On August 10, 1955 Mrs. Slusher and Buckley met at the escrow office and signed the instruments. Certain changes were then made. The instruments in effect provided that Buckley was to be compensated by the purchaser for services rendered and that Buckley was not acting as the agent for the seller. Mrs. Slusher did not receive a copy of the instruments. She read them but did not remember the contents as above set forth and she expressed surprise at the absence of the buyer, Chambreau. Mrs. Chambreau executed amendments to the escrow instruments at the request of Buckley wherein she authorized the escrow company to accept instruments on behalf of G. S. Chambreau from F. J. Buckley.

The deposit...