Engel v. Wilcox, 4160

• Decision Date: 11 June 1959
• Docket Number: No. 4160,4160
• Citation: 75 Nev. 323,340 P.2d 93
• Parties: Vinnie B. ENGEL, Appellant, v. Harry C. WILCOX, Respondent.
• Court: Nevada Supreme Court

Page 93

340 P.2d 93

75 Nev. 323

Vinnie B. ENGEL, Appellant, v. Harry C. WILCOX, Respondent.

No. 4160.

Supreme Court of Nevada.

June 11, 1959.

Nada Novakovich, Reno, for appellant.

Stanley H. Brown, Reno, for respondent.

BADT, Justice.

Respondent, Harry C. Wilcox, a licensed real estate broker, obtained a judgment against appellant for a $1,000 broker's commission on sale of a parcel of land in Washoe County known as the Mt. Rose property and a $500 commission on sale of property known as the Westfield Village property. Appellant asserts insufficiency of the evidence to support the judgment.

The trial court, trying the case without a jury, found that in February 1955 appellant employed respondent to sell the two parcels; that respondent negotiated a sale of the Mt. Rose property to Joseph S. and Ruth S. Williamson upon terms and conditions agreed upon by appellant, namely, for a price of $20,000, payable $175 a month, which included 6% interest, with an additional $1,000 payment within one year; likewise a sale of the Westfield Village property to Floyd A. and Ida P. Anderson, upon terms and conditions agreed upon and suggested by appellant, for $15,000, payable $150 a month, which included interest at 6%, and with an additional $500 payable within one year; that appellant promise to pay respondent a $1,000 commission within one year on the Mt. Rose sale and a commission of $500 within one year on the Westfield Village sale. These findings are supported by the undisputed testimony of respondent.

The controversy presented to the trial court arose, after default of both purchasers, out of recitals in escrow instructions of the parties to the two sales filed with Washoe Title Insurance Company of Reno. Such instructions, with reference to the Mt. Rose property, were signed by appellant authorizing delivery of deed upon issuance of title insurance and execution and delivery of a deed of trust securing the agreed payments. Among other provisions were included the following: 'Full amount of additional [$1,000] payment on principal is to go to Harry Wilcox, Realtor, as Real Estate Commission. * * * I agree to pay [the] above $1,000 commission to broker Harry Wilcox.' The Williamsons signed their agreement to the terms and conditions, which included items as to taxes, insurance, escrow fees, etc. Respondent was not a party to the escrow contract. Identical provisions were contained in the Westfield Village contract with the Andersons.

Appellant's contention in the court below and her contention before this court is that respondent's knowledge of the terms of the escrow '[make it] clear that the respondent entered into an oral agreement with the Appellant, that the commissions would be paid only out of the money to be paid by the purchaser,' and, the purchasers under both escrows having failed to make the cash payments as agreed, the commissions never became payable by appellant. The learned trial judge properly rejected this conclusion. When it appeared that the respective purchasers did not have the money for the down payments that would have taken care of the broker's commissions, respondent said to appellant, 'Well, if it's all right with you that way * * *, if you will defer your payment of down payment of $1,000 for one year, I will do likewise on my commission. * * *' He further testified: 'I...