FITZPATRICK v. UNDERWOOD

Reset A A Font size: Print

District Court of Appeal, Second District, Division 2, California.

FITZPATRICK v. UNDERWOOD.

Civ. 12592

Decided: September 19, 1940

Courtney A. Teel, of Los Angeles, for appellant. Stephen Monteleone, of Los Angeles, for respondent.

Plaintiff, a licensed real estate broker, commenced this action to recover a commission alleged to have been earned in the sale of real property owned by defendant. From a judgment in defendant's favor plaintiff is prosecuting the present appeal, contending that on the findings of the trial court he is entitled to judgment. The appeal is on the judgment roll alone.

Defendant was the owner of an apartment building in the city of Los Angeles known as Underwood Manor. On February 19, 1938, defendant gave to plaintiff a written exclusive authorization to sell Underwood Manor for the sum of $55,000, “for cash and terms satisfactory to me”. Defendant agreed to pay a commission of 5 per cent of the selling price. The authorization ran for six months and at the end of six months the agreement was extended indefinitely with the provision that the agency was not to be exclusive.

The trial court made the following specific findings:

“VII. On December 19, 1938, plaintiff in the course of his operations as a real estate broker exhibited to one Isador Shafer a number of his apartment house properties, including the aforesaid Underwood Manor; that the first information the said Isador Shafer had that said Underwood Manor was at that time for sale was when he was taken to said property by plaintiff on December 19, 1938; that on December 19, 1938, plaintiff and said Isador Shafer viewed said property from the street only. That on December 20, 1938, one Otho Reed Hill, now deceased, a salesman in the employ of plaintiff, took said Isador Shafer through Underwood Manor and exhibited same to him; that plaintiff did not inform defendant that said Underwood Manor had been exhibited to said Isador Shafer by said plaintiff or by said Otho Reed Hill and that defendant had no knowledge thereof until a date subsequent to the 7th day of February, 1939, and after she had sold said Underwood Manor to said Isador Shafer. That defendant left Los Angeles on or about December 1, 1938, for a visit in the east, returning to Los Angeles about December 21, 1938; that plaintiff did not know of the defendant's return to Los Angeles until on or about January 4, 1939, when she came to plaintiff's office with said Isador Shafer, whom she had casually met at 7th and Witmer Streets; that on the said 4th day of January, 1939, at plaintiff's office the purchase of said Underwood Manor by defendant Isador Shafer was discussed between plaintiff, defendant and said Isaor Shafer, but that the parties left plaintiff's office without having come to any agreement as to either price or terms; that defendant, her son, and said Isador Shafer had gone to the office of plaintiff for the purpose of procuring a document in plaintiff's possession belonging to defendant relative to property of defendant other than said Underwood Manor and that said defendant at that time and place received said document from said plaintiff and receipted to him therefor.

“VIII. That said defendant had known said Isador Shafer for approximately twenty years and, prior to the 19th day of December, 1938, said Isador Shafer had been the guest of defendant at said Underwood Manor on several occasions and knew, prior to said 19th day of December, 1938, that defendant was the owner thereof, and, prior to the 19th day of February, 1938, said Isador Shafer had stated to defendant that if he should ever become financially able, he desired to purchase said Underwood Manor.

“IX. That following said 4th day of January, 1939, and for a period of approximately one month, defendant and said Isador Shafer carried on discussions in reference to the sale of Underwood Manor, and, on or about the 7th day of February, 1939, through defendant's own independent efforts and without any assistance from said plaintiff, defendant arrived at satisfactory terms of sale and went into escrow with said Isador Shafer for the sale of said Underwood Manor at a price of $51,000.00 for the real property, plus $2,000.00 for defendant's equity in the furniture and furnishings within said Underwood Manor, and that said Underwood Manor was thereupon sold for the above consideration.

“X. That shortly subsequent to the said January 4, 1939, and to wit: within one or two days thereafter, plaintiff discussed the proposed sale with Isador Shafer over the telephone, and was advised by the said Isador Shafer that defendant had proposed to said Shafer that she, personally, sell her property direct to said Isador Shafer with the stated purpose of avoiding the payment of a broker's commission, so that both buyer and seller might benefit by this item of saving. That plaintiff was then and there informed by said Isador Shafer that defendant and said Isador Shafer intended to conclude said negotiations without plaintiff's further services. That plaintiff then and there advised said Isador Shafer to continue his negotiations with the owner and that if they got together on terms satisfactory each to the other and concluded a deal resulting in the sale of said property by defendant to said Isador Shafer that plaintiff would try to protect himself in the matter of his commission. That plaintiff thereafter stood by and made no further efforts to effect or conclude any sale of said Underwood Manor, and performed no further services; that said negotiations continued between defendant and said Isador Shafer throughout the month of January.”

The court also found that plaintiff did not produce a purchaser for defendant's property ready or willing or able to make the purchase for the sum of $53,000 or for any sum; that it is not true that plaintiff “has performed all things upon his part to have been performed pursuant to the terms” of their agreement; that defendant had no knowledge prior to the institution of the present action that plaintiff intended to claim a commission in connection with the sale; and that no services were rendered by plaintiff which were the procuring or inducing causes of the purchase of the property by Shafer.

A real estate broker earns his commission when he finds a purchaser ready, able and willing to enter into a valid contract for the purchase of real estate upon terms satisfactory to the owner. If the broker communicates with the purchaser and is the means of bringing him and the owner together and the sale results in consequence, the commission is earned although the broker takes no further part in the negotiations and is not present at the consummation of the sale. Hill v. McCoy, 1 Cal.App. 159, 81 P. 1015. It is not necessary that the owner have knowledge that the purchaser was one found by the broker. Justy v. Erro, 16 Cal.App. 519, 117 P. 575. The fact that defendant modified the terms at which plaintiff was authorized to sell and agreed with the purchaser to accept a smaller sum “affords no ground for refusal to pay him his commission”. Twogood v. Monnette, 191 Cal. 103, 215 P. 542; 4 R.C.L., sec. 52, p. 313. Having accepted the sum of $51,000 for the property, other than the furniture, defendant may not now assert that the terms were not satisfactory to her. Her acceptance of the terms finally proposed by the buyer legally obligated her to compensate the broker for the services rendered.

From the specific facts found by the court it is apparent that plaintiff rendered such services as entitled him to compensation. Plaintiff was the first to inform Shafer that the Underwood Manor was for sale. The property was exhibited to Shafer while defendant was absent from the city on a trip to Chicago. Upon her return the purchase of the property was discussed between plaintiff, defendant and the purchaser but no agreement was then made as to price or terms. Thereafter plaintiff was informed by Shafer that defendant had proposed that she personally sell her property directly to Shafer “with the stated purpose of avoiding the payment of a broker's commission”, Shafer also told plaintiff that he and defendant intended to conclude negotiations without plaintiff's further services, but plaintiff informed Shafer that he would protect himself in the matter of his commission. The sale was actually consummated within a little more than a month from the date of the meeting in plaintiff's office. Nothing appears in the court's findings to counteract the effect of any of the findings above mentioned. The finding that prior to the date of plaintiff's contract Shafer had remarked to defendant that if he ever became financially able, he desired to purchase Underwood Manor, does not weaken any other finding, for it is specifically found that a long time after this remark was made plaintiff gave the “first information” to Shafer that Underwood Manor was for sale and the property was then exhibited to him by plaintiff. Although a finding that defendant was informed that plaintiff had found the purchaser was not necessary (Justy v. Erto, supra), it seems incredible that defendant should not have been informed on the subject in view of the court's finding that the purchase had been discussed by plaintiff, defendant and Shafer in plaintiff's office.

Defendant stresses the findings of the trial court to the effect that plaintiff did not produce a purchaser ready, willing or able to purchase the property for cash or terms satisfactory to defendant; that defendant did not actually sell the property to a purchaser produced by plaintiff; and that plaintiff did not perform all things upon his part “to have been performed pursuant to the terms” of the agreement. It will be noted that the specific probative findings cover the essential activities of these parties and present a complete picture of the transaction. The findings relied upon by defendant, although coming under the general classification of ultimate findings, are necessarily based upon the specific probative findings made by the court. They constitute the court's conclusions based upon the facts actually found and as such must be regarded as erroneous conclusions of law. Findings of probative facts invalidate findings of ultimate facts when the latter are based upon the former and are entirely overcome thereby and the findings of probative facts dispose of all the allegations involved in the pleadings and constitute all the facts in the case. Forsythe v. Los Angeles R.R. Co., 149 Cal. 569, 87 P. 24; White v. Rosenstein, 134 Cal.App. 576, 25 P.2d 884. Such is the situation presented by the record in this case.

The judgment is reversed and the trial court is directed to enter a judgment in favor of plaintiff in the sum of $2,550 together with interest thereon at the rate of 7 per cent per annum from February 7, 1939.

WOOD, Justice.

We concur: MOORE, P.J.; McCOMB, J.