Gillespie v. Hagan
| Decision Date | 09 November 1949 |
| Court | California Court of Appeals Court of Appeals |
| Parties | GILLESPIE v. HAGAN et al. Civ. 17191. |
Jesse A. Hamilton, Los Angeles, for appellants.
Max Vernon Pollack, Los Angeles, for respondent.
Appeal by defendants from a summary judgment rendered pursuant to SECTION 437C OF THE CODE OF CIVIL PROCEDURE1 and from an order denying their motion to vacate the same. The sole question to be determined is whether the pleadings and affidavits 'present a triable issue of fact.'
Plaintiff, a licensed real estate and business opportunity broker, brought this action to recover a commission alleged to be due and owing to her for services rendered in the sale of real and personal property. The complaint alleges that defendants were the owners of certain real property and were the owners and operators of a cheese and food processing business operated thereon by defendants Hagan as copartners under the name of El Rey Cheese Company; that defendants employed plaintiff by an instrument in writing which is set forth in the complaint to secure a purchaser for the real property and the food processing business; that she procured purchasers who entered into a written contract for the purchase of the property and that defendants have not paid any part of the commission. The agreement is signed by Evert L. Hagan only.
Defendants Evert L. Hagan and J. A. Hagan filed individual, separate answers in which each denied they were the owners of the real property or of the food processing business operated thereon but alleged Evert L. Hagan was the owner of the real property and J. A. Hagan was the owner of the food processing business. Each denied they were copartners doing business as El Rey Cheese Company or were partners at all in the operation of the business. J. A. Hagan denied he employed plaintiff as a real estate or business opportunity broker by an instrument in writing or at all to secure a purchaser for the real property or the business above referred to, or that he agreed in writing or at all to pay plaintiff for any services rendered by her in the sale of the real property or the business.
Evert L. Hagan, by his third amended answer, admits that he signed the written listing agreement set forth in plaintiff's complaint and alleges that plaintiff procured Herschel O. Condon and Lydia E. Condon as prospective purchasers for the property and the business for $100,000 cash and 'without any escrow'; that thereafter the Condons, upon consultation with their attorney, insisted that the sale go through a formal escrow but defendant refused to go into escrow; that thereafter the Condons, at a meeting held in the office of their attorney, produced a written agreement for the purchase and sale of the real property and business, to which was attached an agreement to be signed by defendant for the payment of commission to plaintiff and John Bessler; that there were present at the meeting, beside the Condons and their attorney, plaintiff Gillespie, defendant Evert L. Hagan and Charles Farrington; that defendant thereupon refused to enter into the escrow unless plaintiff agreed to modify her brokerage contract so that her commission was to be paid 'from the escrow and at the close of the escrow'; that plaintiff then and there so orally agreed and defendant fully executed the oral agreement and signed the contract providing for an escrow; that the Condons' attorney thereupon inserted in the commission agreement the words 'at close of escrow' conforming the same to defendant's demand; that defendant and the Condons then opened an escrow providing that the same should be closed within 45 days; that the escrow was never completed by reason of the refusal of the Condons to carry out any of the terms of the contract of sale or of the escrow.
Plaintiff presented a motion for an order striking out the answer of J. A. Hagan and the third amended answer of Evert L. Hagan and for the entry of judgment according to the demand of the complaint. With her motion she filed her affidavit repeating substantially the allegations in her complaint and alleging further that when Evert L. Hagan signed the contract for the payment of commission he was authorized by written power of attorney from J. A. Hagan to sell the food processing business and real property; that she and defendants at no time discussed a sale of the business and real property without an escrow; that when the contract of sale was signed by defendants and the Condons plaintiff stated that she wished to be protected in escrow, and that there was no discussion between plaintiff and defendants relative to any modification of the original agreement; that defendants have kept the escrow with the Condons open for the purpose of showing that the latter were unwilling to perform their agreement although defendants have sold the real property and business to another person.
In opposition to the motion for a summary judgment there was filed an affidavit by Evert L. Hagan in which he recites substantially the allegations made in his third amended answer, and further states that when he refused to make the sale to the Condons through escrow the latter agreed to bear the expenses of an escrow, and plaintiff agreed that if defendants would sell through a formal escrow she, plaintiff, was not to receive any brokerage fees until the close of the escrow; that in consideration of plaintiff's offer there was an oral agreement modifying the original contract between affiant and plaintiff and that the oral modification agreement was fully executed by defendant by his entering into a written contract of sale upon the altered terms and entering into the escrow; that shortly after the escrow was opened plaintiff procured from the escrow holder a sheet headed 'Escrow Instructions,' lines blank for signature, in which the escrow holder was directed to 'pay as commission at the close of escrow' the sum of $2500 to John Joseph Bessler and $2500 to Nell Gillespie; that affiant signed the paper and delivered it to plaintiff to be returned to the escrow holder. Affiant further states that he believes and has been informed by his attorneys that he has a meritorious defense to the action; that the original contract for brokerage commission was altered both orally and in writing, that such modifications have been fully executed and that the modified contract is the only one upon which plaintiff can collect a commission from affiant.
An affidavit of Charles M. Farrington, who was present at the meeting held in the office of the attorney for the Condons, corroborates the statements contained in the affidavit of Evert L. Hagan as to the conversations that occurred at that meeting and as to the alteration of the typed agreement by the Condons' attorney so as to show that the commission was to be paid at the close of escrow. He also corroborates Hagan's affidavit to the effect that originally it was agreed that there should be no formal escrow but that the agreement was altered at the attorney's office, as stated in Hagan's affidavit, with the same terms and conditions as stated by Hagan. Affiant further states...
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