Close v. Redelius

• Citation: 215 P.2d 659,67 Nev. 158
• Decision Date: 06 March 1950
• Docket Number: No. 3587,3587
• Parties: CLOSE v. REDELIUS.
• Court: Supreme Court of Nevada

Page 659

215 P.2d 659

67 Nev. 158

CLOSE v. REDELIUS.

No. 3587.

Supreme Court of Nevada.

March 6, 1950.

Bert M. Goldwater and David Goldwater, Reno, for appellant.

Kendrick Johnson, Reno, for respondent.

HORSEY, Chief Justice.

The appeal in the instant case is from the judgment rendered an entered on the 16th day of May, 1949, in Department No. 1 of the Second Judicial District Court of the State of Nevada, in and for the County of Washoe, by the Honorable William McKnight, District Judge, and from the district court's order denying defendant's motion for a new trial.

In connection with our study of the record in the instant case, we have carefully read and considered, among other things, the opinion and decision of the court below, and have been much impressed by the statement of facts, comments and conclusions included therein, and can do no better than quote in detail therefrom, as follows:

'Opinion and Decision

'Plaintiff brought an action to recover the sum of $1,200.00, alleged to be due for his services as a licensed real estate agent in procuring a purchaser for property of defendant, known as the Paradise Beauty Salon, in Reno, Nevada. From a judgment against defendant as prayed, defendant has moved for a new trial, has filed objections to the findings of fact and conclusions of law submitted by plaintiff, and has proposed other findings of fact and conclusions of law.

'The different phases of the matter have been argued so seriously by defendant's counsel that a complete statement of the facts is deemed necessary.

'On June 24, 1947, defendant orally listed the Paradise Beauty Shop, in Reno, Nevada, with the plaintiff a licensed real estate broker, through plaintiff's agent, Sally Clark, also a licensed real estate broker, exclusively, without limit as to time, for sale, to net defendant $20,000.00. Defendant stated to Sally Clark; 'Sally, I have spent $11,000.00 remodeling this place and putting in new equipment, and I have to have for my share, $20,000.00,' whereupon Sally Clark replied: 'Well, all right, Hazel, of course, we have to add our fee to that, which is ten percent on all business deals, and ten percent of $20,000.00 is $2,000.00 making it $22,000.00. Terms were not discussed, other than defendant first stated that she would like cash, and 'I might come down a little on that price, but I have to get awful close to $20,000.00.' In response to the question, 'What is the lowest amount down,' propounded to defendant by Sally Clark, defendant replied. 'The least I will take down will be $5,000.00, I will take a piece of income property or a house because I could rent it, Sally.' Defendant then stated that she was paying $250.00 on a note for $5,000.00, and that the purchaser would have to make those payments. An inventory of the place was then made by defendant and Sally Clark, so that plaintiff would have a record. (Plaintiff's Exhibit D.) Thereupon the property was listed in plaintiff's record book, as an exclusive listing, for sale for $22,000.00.

'Plaintiff thereafter advertised the property for sale in the Reno papers for a period of about six weeks. Mrs. Carma D. Wygant, of Winnemucca, Nevada, read the advertisement, and, after first telephoning for information regarding the beauty shop and being informed by Sally Clark that the information could not be given on the telephone because 'it was an exclusive,' called at plaintiff's office on August 13, 1947. Mrs. Wygant was then shown the property by Sally Clark, and was quoted the price of $22,000.00. Mrs. Wygant wanted to pay less, offering to pay $20,000.00, and they compromised on a price of $21,200.00, whereupon Mrs. Wygant issued a check for $200.00, payable to plaintiff, subject to her husband's approval of the property.

'On August 17, 1947, Mrs. Wygant and her husband called at plaintiff's office, and were shown the property by Sally Clark, after which Mr. Wygant gave Sally Clark a check, payable to plaintiff, for the sum of $4,800.00, and he and his wife signed a paper agreeing to purchase the property for $21,200.00, and in which they agreed to pay defendant the sum of $20,000.00, payable as follows: the sum of $5,000.00 in cash, they to assume and pay the $5,000.00 obligation against the property, and to pay the sum of $10,000.00 at the rate of $150.00, or more, a month, with interest at the rate of 6 per cent per annum. (Plaintiff's Exhibit A.)

'This offer could not be shown to defendant immediately, because she was then very ill in the hospital and could not see anyone. However, a few days after the offer, Sally Clark left the agreement with defendant's sister to show to defendant.

'Mr. and Mrs. Wygant directed the bank to stop payment on the check for $4,800.00, until they 'got the inventory on it,' whereupon the bank attached a paper to the check reading: 'Payment Refused until deal goes through.'

'On August 29, 1947, plaintiff telephoned to Mrs. Wygant, at Winnemucca, Nevada, about stopping payment on the check for $4,800.00, and Mrs. Wygant stated: 'Because Mrs. Hazel Close had not signed her acceptance of $21,200.00, the offer, she had been advised to stop the transaction, and regardless of that, * * * you continue on that, we want the place; * * * to keep in contact with Mrs. Close and see if they could not get it.'

'Defendant returned to her home from the hospital about August 31, 1947. A few days thereafter the signed agreement was shown to defendant at her home by Sally Clark, who then said to defendant: 'Hazel, you, no doubt, have seen the agreement,' whereupon defendant replied: 'Yes, I have seen it. I have not made up my mind yet about it.' Sally Clark then said: 'Of course, you have read the agreement,' and defendant said: 'Yes.' Defendant said she would think it over and let Sally Clark know. Sally Clark then said: 'We have to do something about this, one way or the other and we have waited quite a while for your answer and these people are anxious for your answer.'

'The plaintiff then called upon defendant at her home, and had a conversation with her with reference to the matter, and defendant said: 'Yes, I am well informed. I have been informed by my sister.' Defendant said she was not sure; 'that things had changed since I have been in the hospital and my sister advises me against it, and I would prefer you people try to sell the Marinello Beauty School.'

'Plaintiff never told Mrs. Wygant that the deal was off, but she and her husband 'just figured we could not get it; * * * that plaintiff 'could not produce it for us.'

'On 'Sunday, the day of the Water Follies,' (which in fact was September 7, 1947) Mr. and Mrs. Wygant came to Reno from Winnemucca, 'to see the Water Follies.' As they were then 'very anxious to buy this place for $21,000.00,' they called upon defendant at her home. They wanted to meet Mrs. Close 'and talk about the Paradise Salon.' They then told the defendant that 'if she ever wanted to sell, to let us know.' The defendant 'said the beauty salon was not for sale at present and she would let us know if the doctor said she would not be able to handle it.' They did not discuss the terms of the sale with defendant, but defendant 'mentioned, if she decided to sell, could we get cash for that, and we told her we could. We have property here and we could have borrowed the balance. * * * We just figured it was $21,200.00 we would have to give.' Mr. and Mrs. Wygant did not have $21,200.00 ready at any time in cash, but they could always have gotten it; they could have borrowed it from the bank.

'On September 8, 1947, Attorney George Lohse, representing Mr. and Mrs. Wygant phoned to plaintiff and wanted to know why the deal had not been closed, and, finally, he suggested that plaintiff had better send the $200.00 back to Mrs. Wygant. Plaintiff thereupon drew his check for $200.00, and handed it to Attorney Lohse's Secretary. (Plaintiff's Exhibit B.)

'About October 1, 1947, defendant and Herbert P. Graffam, a real estate salesman employed by plaintiff, discussed the fact that the Wygants were still very much interested in the purchase of the Paradise Beauty Salon, and defendant at that time told said salesman that if the deal was consummated that she would put in through plaintiff's office.

'Defendant did not, however, thereafter even attempt to put the deal through plaintiff's office. Instead, defendant's sister telephoned to the Wygants, in Winnemucca, on or about October 2, 1947, and told them that defendant 'wanted to sell the place.' On the following Sunday, about October 5, 1947, Mr. and Mrs. Wygant came to Reno, and called upon defendant at her home to see about the purchase. They did not make an offer to defendant. Defendant 'said what she wanted, she wanted $20,000.00.' Defendant also said, 'I would have to have $8,000.00 immediately and $1,000.00 in sixty days, and I would have to have $250.00 per month thereafter.'

'On October 10, 1947, an agreement was drawn by attorney J. T. Rutherford at the request of defendant, covering the sale of said property from defendant to Mr. and Mrs. Wygant, for the sum of $20,000.00, payable $8,000.00 down, $1,000.00 within sixty days, and $11,000.00 in monthly installments of $250.00 a month, or more, with interest at the rate of six per cent per annum on the monthly balance remaining unpaid, said monthly installments of $250.00 to include both principal and interest, and which agreement also provided that:

"It is further agreed by and between the Seller and the Buyers that the said Buyers will pay any and all commissions of real estate agents or others, which may be now due or which may hereafter become due incidental or relative to the consummation of the sale and/or purchase of said Paradise Beauty Salon.' (Defendant's Exhibit 1).

'Defendant submitted this agreement to Mrs. Wygant, who handed it to Attorney W. M. Kearney for examination. After more discussion between defendant and the Wygants, Attorney Kearney drew an agreement, which...