Opinion
Hearing Granted by Supreme Court May 7, 1928.
Appeal from Superior Court, Los Angeles County; T. A. Norton, Judge.
Action by Charles G. Andrews and others, copartners doing business under the fictitious firm name of Charles G. Andrews Company, against C. L. Waldo, to recover broker’s commission on sale of real property. From judgment of nonsuit, plaintiffs appeal. Reversed, with instructions. COUNSEL
S. T. Hankey and Wood, Janeway & Pratt, all of Los Angeles, for appellants.
William B. Brown, of Los Angeles, for respondent.
OPINION
NOURSE, J.
Plaintiffs sued as real estate brokers upon a written contract to procure a purchaser for real property. Defendant’s motion for a nonsuit was granted after the entire cause had been heard and plaintiffs appeal on a bill of exceptions. No findings of fact were made and, accordingly, on this appeal we must take the evidence most favorable to the plaintiffs.
The contract of employment authorized plaintiffs to negotiate the sale of and to sell the property described for $60,000, payable "$30,000 secured by a first mortgage, interest at 7 per cent. per annum, payable quarterly." The seller agreed to furnish guaranty of title free and clear except as to 1923-1924 taxes and promised to pay the agent a commission of $2,000 "in the event the agent procures a purchaser as above provided and written notice thereof be given to C. L. Waldo personally, or be addressed and mailed to him on or before said May 17, 1923."
It was further provided that
"Said agent is hereby appointed the attorney in fact of the undersigned owner, with full power to execute, in the name and on behalf of the undersigned, an agreement of sale of said property with any purchaser obtained within the time, for the price and upon the terms aforesaid."
Within the time specified the agents notified the owner, both personally and by letter, that they had obtained a purchaser ready, willing, and able to purchase the property upon the terms specified, and at the same time exhibited to the owner a check of the prospective purchaser in the sum of $500 and a written sales contract executed by the prospective purchaser and the agent. In this writing the prospective purchaser agreed to purchase the property for the price specified, payable $30,000 cash upon execution of a good deed with a guaranty of clear title except as to 1923-1924 taxes; "balance of the purchase price to be evidenced by a note in the sum of $30,000, payable on or before three years from its date, with interest thereon at 7 per cent. per annum, payable quarterly, secured by a first mortgage on the above-described property." Provision was made for the search of title and the owner was given 30 days from the discovery of any defect to clear his title. It was then provided that, if the purchaser did not complete the purchase within 30 days after notice from the owner of his ability to convey, the deposit of $500 should be forfeited at the election of the owner, but that this forfeiture "shall not release the purchaser from his obligation to complete the purchase." Provision was then made for the prorating of insurance and rents "to close of escrow."
When this sales contract with the deposit was exhibited to the owner by the agent the owner displayed the utmost bad faith in the endeavor to prevent the agent from effecting a consummation of the sale. He informed his agent that the written acceptance signed by the buyer did not seem to meet the requirements, "but I would want to study it over a little and I will be back in a couple of days." He refused, however, to inform his agent in what respect the acceptance was defective, refused to permit his agent to make further negotiations with the buyer, refused to meet or negotiate with the buyer, and falsely informed his agent that he was called immediately to Imperial county and would not return for a couple of days. This conversation having occurred on the last day on which the agent could procure under his contract a buyer ready, able, and willing to purchase, the refusal of the owner to meet the buyer and his refusal to state his objections to the acceptance as that the agent could make further negotiations with the buyer within the time of his employment were both acts preventing performance which foreclosed the owner from defending on the ground of nonperformance. Civ. Code, § § 1511, 1512.
But the owner did not stop there. He demanded two conditions to the acceptance of his offer which his contract did not permit him to make-he demanded that the first payment of $30,000 be "laid in his lap then and there," or, as he put it when a witness in his own behalf: "I did suggest to him that afternoon (May 17, 1923) that I wanted $30,000 paid over to me forthwith." He also demanded that the buyer put up a cash deposit of $5,000 to bind the contract. The contract did not call for a cash payment upon acceptance, but it did call for such payment on delivery. And the contract did not call for a cash or any deposit to bind the contract. In insisting upon these conditions the owner again brought upon himself the responsibility for nonperformance on the part of his agent. The rule applicable is similar to that in a case of tender. A party may not arbitrarily claim that a tender is insufficient and refuse to give reasons, and he cannot insist upon conditions which he is not authorized to demand. Civ. Code, § 1501; Code Civ. Proc. § 2076.
We have said that the contract did not call for a cash payment on acceptance. The terms of sale specified by the owner were "$30,000 cash; balance evidenced by a note for $30,000 secured by a first mortgage." The owner also agreed "to furnish guaranty or continuation of guaranty of title." The buyer agreed to pay $30,000 cash upon delivery of deed and guaranty of title. It is said in Luckehe v. First Nat. Bank of Marysville, 193 Cal. 184, 189, 223 P. 547, 549:
"Every commercial contract is entered into with the understanding that usage in regard to the particular matter of the contract becomes a part of the transaction itself."
It is a matter of common knowledge that, when sales of realty are made free of all incumbrances payment of the purchase price is not made until clear title is shown, but that, if any payment is made pending search of title, such payment is termed a deposit to be applied on the purchase price or returned to the buyer depending upon the result of the title search. Where the contract does not call for a deposit it will be assumed that payment is due upon delivery of deed, and, when it calls upon the owner to furnish guaranty of title, payment is not due until such guaranty is given.
After the owner had prevented performance by his agent, as heretofore indicated, he raised other objections to the form of the acceptance which may be considered briefly. He argues that the acceptance departed from the offer, in that it called for an escrow. It does not. It was written on a printed form prepared by the owner’s agent and which contained the usual stipulations in print: "Insurance (and rents) to be prorated to close of escrow." Though this does not require an escrow to be made, the undisputed evidence was that such was the custom and usage in sales of this kind, and it would not therefore be a departure from the terms of the offer if an escrow were demanded. It is argued that as the offer called merely for a note secured by mortgage the acceptance added a new condition when it provided for a three-year note and mortgage. The offer was indefinite in this respect and the agent had ample authority to make it clear. Smith v. Keeler, 151 Ill. 518, 38 N.E. 250, 251. It is argued that in providing for a proration of the insurance and rents new terms were added. The proration of the insurance was distinctly to the benefit of the owner while the proration of the rents may have been to his benefit or not, depending whether rents were paid or unpaid at the time of the transfer. These conditions could have been waived by the owner, but, in any event, they were in harmony with the prevailing custom and usage and were minor details which the agent had authority to insert.
Finally it is argued that the acceptance called for payment of the $30,000 "within thirty days after notice from owner of his ability and readiness to convey." The argument is based upon the following language in the printed form of the acceptance:
"If the purchaser does not complete the purchase as hereinbefore provided within thirty days after notice from the owner of his ability and readiness to convey said property as herein provided, then the said deposit at the election of said owner shall be forfeited, and it shall thereupon be paid, less the commission of the undersigned agents, to the owner. The forfeiture, however, shall not release the purchaser from his obligation to complete the purchase."
The language quoted followed a provision in this printed form giving the owner 30 days to perfect title if he discovered any defect in the search. It was all inserted by the agent for the sole benefit of the owner. It was expressly provided that the buyer was not relieved from his obligation to complete the purchase according to the terms specified-a cash payment of $30,000 upon delivery of deed and guaranty of title, and a note and mortgage covering the balance. The language quoted has no reference or application to the time or manner of payment, but relates solely to the forfeiture of a deposit which was not required by the offer.
The contract of employment required the agent to produce a purchaser ready, able, and willing to purchase upon the terms proposed, and to notify the owner in writing within the time fixed that he had secured such a purchaser. "It is not necessary that a binding contract be executed by the purchaser. It is only necessary that he be ready, able, willing, and offer to purchase." Coulter v. Howard (Cal. Sup.) 262 P. 751, 754; Twogood v. Monnette, 191 Cal. 103, 107, 215 P. 542. Within time the agent procured such a purchaser and gave the owner the required notice. After the time had expired the purchaser made a definite offer to the owner to purchase upon the terms fixed and was prevented from making such an offer within the time fixed solely by the act of the owner. "The law requires of the vendor good faith and the doing of no intentional act to discourage, embarrass, or prevent the completion of the purchase." Coulter v. Howard, supra. The broker has earned his commission when he has done what he is required to do under the contract of employment and also when full performaance by the broker is prevented by the arbitrary or wanton act of the owner. Merriman v. Wickersham, 141 Cal. 567, 570, 75 P. 180; Purcell v. Firth, 175 Cal. 746, 750, 167 P. 379.
The undisputed evidence proves the allegations of the amended complaint and the conflicts which appear in the evidence go to minor details not affecting appellants’ right to recover. The cause was fully tried and should not be tried again, but findings are necessary to support the judgment.
Though the power to make findings of fact "contrary to, or in addition to, those made by the trial court" rests in the appellate court by reason of section 956a, Code of Civil Procedure (St. 1927, p. 583), we have not found any rule on the precise point involved here-the power to make findings when none were made in the trial court. In the absence of a ruling we deem it the better practice to have the findings and judgment prepared by the trial court and filed there so that the judgment roll may make a complete record. The judgment is reversed, with instructions to the trial court to prepare findings in accordance with the views expressed herein and to enter judgment thereon in favor of plaintiffs for the sum prayed for, with interest at the legal rate from May 17, 1923, and costs.
We concur: KOFORD, P. J.; STURTEVANT, J.