Turner v. Waldron Realty

• Decision Date: 08 November 1962
• Citation: 25 Cal.Rptr. 771,209 Cal.App.2d 376
• Court: California Court of Appeals Court of Appeals
• Parties: Charles W. TURNER and Kathleen D. Turner, Plaintiffs, Cross-Defendants and Appellants, v. WALDRON REALTY, W. W. Gaspard, et al., Defendants, Cross-Complainants and Respondents. Civ. 6873.

Page 771

25 Cal.Rptr. 771

209 Cal.App.2d 376

Charles W. TURNER and Kathleen D. Turner, Plaintiffs, Cross-Defendants and Appellants, v. WALDRON REALTY, W. W. Gaspard, et al., Defendants, Cross-Complainants and Respondents.

Civ. 6873.

District Court of Appeal, Fourth District, California.

Nov. 8, 1962.

Murphy & Donahue and M. S. Bernard, Santa Ana, for plaintiffs, cross-defendants and appellants.

H. Walter Steiner, Santa Ana, for defendants, cross-complaints and respondents.

COUGHLIN, Justice.

The issues in this matter arise out of a real estate broker's listing agreement; the rendition of services in response thereto; and his claim for a commission.

On April 4, 1959, Mr. and Mrs. Turner, who are the plaintiffs, cross-defendants and appellants herein, listed the subject property for sale with F. P. Waldron, a real estate broker doing business as Waldron Realty, and employing W. W. Gaspard, a real estate salesman, both of whom are the defendants, cross-complainants and respondents herein. Waldron's only participation in the transaction is through Gaspard. On the aforesaid date, the Turners owned three adjoining parcels of property totaling approximately 47 acres; listed with Waldron the subject property which is a parcel approximating 7 1/2 acres; and, by separate agreement, also listed with him the whole 47 acres. The listing involved in this case was in writing; covered the period from April 4th to April 15th; related to the 7 1/2 acre parcel; authorized the broker to sell the same for $88,000 on 'Terms: Submit'; and provided for a commission of 5% 'of the selling price.'

Thereupon the broker obtained a prospective buyer named Fether who, on April 14th, submitted an offer in writing to purchase the property for $9800 per acre, payment to be made in cash on close of escrow; described the parcel as having a frontage of '320 on Hobart Street'; related that he intended to develop 'the property into approximately 25 lots and a variance for triplex usage'; agreed to pay for all expenses incurred in obtaining such a variance; provided that 'Upon securing the variance the buyer and seller will enter * * * a 60 day escrow'; and declared that a $1000 check securing the offer, to be placed in escrow, was held by the Tustin Land and Cattle Co., a real estate brokerage firm, in its trust account.

The Turners did not accept the offer as presented; revised it by causing insertions and deletions to be made in the writing submitted to them; in this manner added to the description of the property by referring to it as 'the 7+ acres purchased from Ed Hall'; increased the price to $10,300 per acre with a 30 day escrow; and attached their signature, indicating acceptance of the offer as revised. Fether approved the revision. In addition, both parties, by a separate instrument in writing 'agreed that upon successful completion of the escrow' in question 'a real estate commission based on 5% of the selling price will be paid to Waldron Realty Co.' and an assisting broker. The latter thereafter assigned his rights in this agreement to Waldron.

On June 9, 1959 proceedings were instituted to effect the triplex zoning variance referred to in the purchase agreement. The extent of these proceedings, the various steps taken, what transpired in the course thereof, and the sequence of events, do not clearly appear from the record before us, which is presented by an engrossed statement on appeal augmented by the exhibits introduced at the trial. However, the following facts are supported by substantial evidence, and are stated in accord with the rule requiring acceptance of that version thereof most favorable to the judgment when the sufficiency of the evidence to support the same is attacked on appeal. (Thomas v. Hunt Mfg. Corp., 42 Cal.2d 734, 736, 269 P.2d 12.) Fether was informed that a variance for triplex purposes would require a 380 foot frontage on Hobart Street, which would necessitate the acquisition of an additional two acres from the adjoining property. He requested the broker to arrange for the purchase of this additional acreage. The Turners orally agreed to such a purchase, the price per acre remaining the same. Thereupon a variance application was filed with the planning commission covering the seven acre parcel described in the original written agreement, and the additional two acre parcel orally agreed upon; contained a legal description of these two parcels; and was verified by Mr. Turner, under oath, on behalf of the owners of the property. A dispute arose as to whether the application sponsored by the Turners was one to obtain a duplex variance for seven acres or a triplex variance for nine acres. The Turners, by letter to the planning commission, at first revoked all variance applications made by them but subsequently indicated their objection thereto was directed only to the use thereof to obtain a duplex variance. On July 8, Mr. Turner directed a letter to Fether which reflects this dispute, and in which it was stated:

'I hereby rescind the said agreement dated April 14, 1959 and any and all agreements or escrow instructions heretofore signed by me with respect to said property. In addition, I am notifying the Santa Ana Planning Commission that I am revoking the application for variance which was heretofore signed by me and which is presently pending * * *.

* * *

* * *

'It is also interesting to note that our agreement as aforesaid concerned property consisting of seven acres while the escrow instructions as prepared and dated June 11, 1959, and the variance application concerned property consisting of nine acres which was not in our agreement.'

Six days later Fether caused a letter to be sent to the Turners in which he asserted his reliance upon the written agreement to support his right to purchase the 7 1/2 acres and upon the oral negotiations between them to support his right to purchase the additional two acres, and also asserted his intention to enforce the former even though he was unable to enforce the latter. In the meantime a man named Griffith negotiated with the Turners for the purchase of that part of their property not sold to Fether, and these negotiations also included the probability of purchasing the whole property. On August 20th, the Turners and Fether directed a communication to the planning commission which, in substance, advised that the application theretofore filed, should be considered as the application of both of them; and requested a favorable consideration thereof; but declared that the Turners would not consent to any amendment thereof so as to permit the construction of duplex units. As heretofore noted, both the 7 1/2 acre and the two acre parcels were included in this application. On the same day, i. e., August 20th, the Turners advised Fether, by two letters, that they in no way intended to violate or breach their agreement of April 14th and would 'cooperate fully and perform' that agreement. On August 24th the planning commission voted approval of the triplex variance and on September 8th the city council granted the same. Thereafter, Fether agreed to go into escrow to consummate his purchase of the two parcels covered by the variance, but the Turners refused to do so stating that they would abide by the agreement of April 14th for the purchase of the 7 1/2 acre parcel and also stating that they had sold the balance of the property to Griffith. By escrow instructions dated August 25th, which was the day after the planning commission had approved the triplex application, the Turners and Griffith had agreed to a sale and purchase of the whole 47 acres at $11,000 per acre; amendments thereto were made from time to time, but eventually the sale therein agreed upon was consummated; and on October 30th Griffith became owner of the entire parcel. Before consummation of this sale Fether had brought an action against the Turners to enforce the agreement to sell him the nine acres which he wished to purchase; prayed for specific performance, or in the alternative, for damages; subsequently compromised his claim for $700; and thereupon dismissed the action. The triplex variance was scheduled to expire on March 8, 1960 because construction had not been commenced. The Turners requested a 90 day extension thereof; and this request was granted.

The instant action was commenced by the Turners, who alleged they had been injured by the unauthorized action of Waldron and Gaspard in negotiating the sale of the two acre parcel, and sought recovery of damages on account thereof. The latter cross-complained for their commission. The trial court found in favor of Waldron and Gaspard on all issues; that they should recover $4892.50 as a commission based on a prospective 9 1/2 acre sale; and that the Turners should recover nothing on their complaint. Judgment was entered accordingly. The plaintiffs appeal from the judgment; make no contention respecting that part thereof decreeing that they should take nothing on their complaint; contend that the award of a commission should be reversed; and list the following issues on appeal, i. e.:

'1. Is the instrument of April 14, 1959, sufficiently definite so that both the buyer and seller had a valid and enforceable agreement?

'2. Are the respondents entitled to a commission on the entire nine acre parcel?

'3. Are the respondents entitled to a commission on the seven acre parcel?'

Both sides devote extensive consideration to the issues as to whether the written agreement of April 14, 1959 bound the Turners to sell Fether 9 1/2 acres; whether the statute of frauds rendered the same unenforceable; and whether the Turners were estopped to assert that statute. As will be noted hereinafter, these issues are immaterial to the case at hand. At this juncture, however, it should be noted that the instant action is not one beteen the buyer and the sellers where such issues properly might be advanced.

The cross-complaint for a commission alleges,...