Seck v. Foulks

• Decision Date: 15 May 1972
• Citation: 102 Cal.Rptr. 170,25 Cal.App.3d 556
• Parties: Charles B. SECK, Plaintiff and Appellant, v. George W. FOULKS, aka G. W. Foulks, aka George W. Foulks, Jr., George Guy Foulks, aka Guy G. Foulks, and Elizabeth Foulks, Defendants and Respondents. Civ. 12241.
• Court: California Court of Appeals Court of Appeals

Page 170

102 Cal.Rptr. 170

25 Cal.App.3d 556

Charles B. SECK, Plaintiff and Appellant, v. George W. FOULKS, aka G. W. Foulks, aka George W. Foulks, Jr., George Guy Foulks, aka Guy G. Foulks, and Elizabeth Foulks, Defendants and Respondents.

Civ. 12241.

Court of Appeal, Third District, California.

May 15, 1972.

Dahl, Hefner, Stark & Marois, by John D. Bessey, and C. Afton Moore, III, Sacramento, for plaintiff and appellant.

William A. Sitton and Robert C. Cook by William A. Sitton, Sacramento, for defendants and respondents.

JANES, Associate Justice.

Plaintiff appeals from an adverse judgment by the court rendered pursuant to Code of Civil Procedure section 631.8 in an action by plaintiff against defendants seeking payment of a real estate broker's commission. Defendant George W. Foulks at all relevant times had full authority to act for and appeared on behalf of his parents, defendants Guy G. Foulks and Elizabeth Foulks; we will use the name 'Foulks' to refer to George W. Foulks, the principal defendant in the action.

FACTS

Plaintiff Charles Seck, a licensed real estate broker and longtime acquaintance of defendant Foulks, was approached by Foulks in early March 1965 with reference to sale of the Foulks' ranch in Sacramento County. A week after their initial encounter, Seck visited Foulks' office in Sacramento and Foulks asked Seck to ascertain a reasonable selling price for the ranch property. Seck received Foulks' oral assurance that Foulks would not deal with another real estate broker, since Seck anticipated the expenditure of time and money.

Seck then conducted an investigation to determine the value of the property. He returned to Foulks' office a week later and reported that $2,000 per acre would be a reasonable selling price and Foulks agreed that figure was reasonable.

Foulks then told Seck the terms upon which he would sell the property; he declined, however, to give Seck a 'formal' listing agreement. The reason expressed by Foulks for his persistence in refusing to execute a formal agreement was that 'I'd have all my neighbors down on me for having raised the value of their property by virtue of the listing.' Despite Seck's assurances to the contrary, Foulks stated: 'I want to do it that way,' and 'You know dog gone well, you know me, I'm not going to cheat you out of a commission.'

Seck, knowing that he had to have a written contract in order to collect a commission on the sale of real estate, marked down, on the back of one of his regular business cards, the terms discussed with Foulks; he then handed the card to Foulks, who at Seck's request, initialed and dated it. ¹ Foulks then copied the data onto a piece of paper of his own and, at his request, Seck also initialed Foulks' memorandum of the terms.

The meaning of the terms and symbols on Seck's business card--as explained by the testimony of Seck and accepted by the trial court--was as follows: '310 M/L' meant there were 310 acres 'more or less' that were to be sold. The '2000 per acre' meant that 'we were offering the property at $2,000 per acre.' '1/2 down' meant that one-half of the amount of the principal was to be paid into escrow; 'bal 5 years' indicated that the balance was to be payable 'over a period of five years on a deed of trust.' The '5%' was the interest to be charged on the deed of trust. The line 'quarterly with int' meant that quarterly payments were to be made on the deed of trust, with interest at 5%. '1/2 mineral rights' was intended to reserve one-half of the mineral rights on the property to the seller. The symbol '6% Comm.' meant that Foulks would pay Seck a six per cent commission, and the date '10/1/65' fixed the termination date (rounded off) of the six months' period given Seck to handle the sale. The first word, 'Sitten' (a misspelling of 'Sitton') was an indication that 'the documents had to be presented to (Mr. Sitton, Foulks' attorney) for legal interpretation' on 'any deal' that Seck brought to Foulks. The date of the conversation and notation '3--24--65' and the initials 'GWF' were placed on Seck's business card by Foulks, as we have emphasized (see fn. 1). ²

As the trial court found, Seck then began an extensive campaign to sell the property. He secured a title report and employed an engineering firm which prepared maps of the property. He drafted and mailed out numerous letters, printed advertising flyers, and prepared a detailed brochure which he furnished to persons and firms expressing an active interest in the property. The documents described the property, emphasizing its desirable location and other strong selling points; one of the documents bore reference to 'Charles B. Seck' as 'Exclusive Agent;' another on its attractive cover sheet a large caption: 'CHARLES B. SECK, realtor.' Foulks was aware of the efforts and contacts being made by Seck: He was given copies of the advertising literature designating Seck as 'Exclusive Agent,' and was shown a copy of the brochure naming Seck as 'realtor' on the proposal. Foulks in fact, on one occasion, called Seck and referred to him a couple who had indicated an interest in purchasing the property.

During the course of his efforts, Seck contacted, among others, Richard Ohm, who acted as broker for the real estate development firm of Walker & Donant. Ultimately, on August 20, 1965, Walker & Donant, through Ohm, put up $10,000 and executed a deposit receipt to purchase the property, accompanied by a proposed purchase agreement. The offer was delivered to Foulks who in turn referred it to his attorney, Sitton. The offer was not acceptable to Foulks, however, because it did not conform to the terms initially proposed by him.

Because of difficulties encountered in communicating with Foulks and Sitton, Walker & Donant on September 21, 1965 retained Attorney Burke as its attorney in an attempt to negotiate with Foulks and Sitton for consummation of the purchase. After Burke met with Sitton, Sitton prepared a list of eight objections to the proposed agreement.

On September 23, Burke and Sitton met separately from the parties in order to review the proposed contract and work out an agreement mutually acceptable to the parties. At that time the attorneys reviewed the list of objections posed by Sitton. The second objection was 'Commission payments with respect to the sale should be placed upon an installment basis, to be paid proportionately at such times as seller receives payment on account of purchase price.' ³ Both attorneys agreed, however, that this objection was a matter more properly left to the 'agents,' co-brokers Seck and Ohm, and that it should be handled as a separate matter. A notation to this effect was made on the list of objections. After the meeting, Burke redrew the proposed purchase agreement in accordance with his and Sitton's discussion and sent a copy of the new proposed agreement to Sitton in anticipation of a meeting with the parties. ⁴

Finally, on September 28, 1965, all parties met in Sitton's office. The expressed purpose of the meeting was to reach a final agreement on the sale of the property. The parties discussed and agreed upon the terms and conditions of the redrafted agreement, which had already been signed by Mr. Donant for the buyers. Sitton indicated to Foulks his approval of the agreement for Foulks' signature. Foulks' only expressed reservation was his desire 'as a matter of courtesy' to communicate to his parents, who lived on the property, the facts concerning a life estate reserved to them by the agreement. Before the meeting adjourned, the question was put to the parties, 'Do we have an agreement?' Foulks replied, 'Yes, you have an agreement.' The parties then stood up and shook hands. ⁵ All that remained to be done was for Foulks to affix his signature to the agreement after reporting to his parents, and to return the agreement to Burke. Sitton was also to designate to Burke which title company he wished to use, which Sitton did a short time later.

At the conclusion of the meeting, Sitton requested Seck and Ohm, the brokers, to remain for a few minutes. After all other participants in the meeting (including Foulks) had left Sitton's office, Sitton asked the brokers to take their commission in installments, stating that 'Mr. Foulks shouldn't pay this commission in cash.' Seck and Ohm declined to do so. ⁶

Nothing was heard thereafter from Sitton or Foulks, nor did Foulks ever sign and forward a copy of the agreement to the buyers. Although both Burke and the buyers sought an explanation from Foulks and Sitton, no explanation was ever given except that the property had been sold to other buyers.

SUFFICIENCY OF THE 'CALLING CARD MEMORANDUM'

Before turning to plaintiff's contentions on this appeal, we dispose of defendant's attack upon the trial court's finding that the memorandum (referred to by the parties and sometimes herein as the 'calling card memorandum') constituted a 'written listing of defendant's property with plaintiff as Broker for sale upon the terms and conditions therein set forth.'

It is defendant's position that the memorandum made by Seck and initialed and dated by Foulks does not meet the requirements of the statute of frauds, ⁷ and that this court is required to make an independent interpretation and determination of the sufficiency of the questioned memorandum.

As authority for his contention, Foulks relies upon the oft-cited case of Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 44 Cal.Rptr. 767, 402 P.2d 839 and kindred cases. Parsons lays down the proposition that the interpretation of a written instrument, although involving questions of fact, is essentially a judicial function. (Id. at 865, 44 Cal.Rptr. 767, 402 P.2d 839.) Recognizing, however, that the interpretation of a written instrument sometimes involves the admission of extrinsic evidence, Parsons itself limits application of the general proposition stated to those cases, inter alia, in which...