Westergard v. Baker

This is an appeal from a judgment for plaintiff in an action for a broker's commission under a contract reading as follows: "Los Angeles, California, September 7th, 1926. "Commission Agreement. "Whereas P. Westergard, Realty Broker is negotiating a tenant for a Ninety-nine year Lease on Lots 8-9 and 10, Spence Tract, Wicks addition, owned by H.C. Tucker, F.G. Baker and G.W. Baker, it is hereby agreed that Mr. Westergard will accept $1,800 as Commission, if deal is consummated, Commission to be paid as follows: $450.00 per Month starting when said transaction is completed and Papers come out of escrow. "Signed FRANK G. BAKER. "Signed H.C. TUCKER. "Agreed to "P. WESTERGARD." The defendants and one G.W. Baker were the owners of a certain parcel of real property in the city of Los Angeles. Whittier Boulevard Pools, Inc., were desirous of securing *Page 703 a location for the construction of a swimming pool, and consulted P. Westergard, the plaintiff, a real estate broker, who in turn got in touch with defendants, and a lease was entered into between them and Whittier Boulevard Pools, Inc. The trial court found that the lease was executed "on or about" September 8, 1926. The lessee paid six months' rent in advance and started excavating, but before its completion, abandoned the project. Subsequent to the taking of this appeal the executrix of the plaintiff was substituted as plaintiff and respondent herein. [1] Appellant's basic contention is that the finding of the court that the lease was executed after the commission agreement is not supported by the evidence. Both appellant and respondent assert that the date of the execution of the lease and whether it was before or after the execution of the commission agreement are of vital importance and largely determinative as to the rule of law applicable to the case. Appellant's counsel asserts that there is "not one iota" of evidence to show that the lease was signed subsequent to the agreement, while respondent declares that not only did the proof show that the lease was executed after the agreement, but also that the case was tried upon that theory. The answer to the complaint refers to the agreement as one for a commission "to be paid upon the consummation of a deal for the leasing of said lots . . . upon the condition that the plaintiff would obtain a tenant who would sign a lease for said premises", a concession that the lease was signed after the commission agreement, and at the outset of the trial we find counsel for plaintiff and respondent offering to stipulate that the lease was executed on the same date as the agreement, an offer which, however, was not accepted by appellant. Though the lease was in court and in the hands of the trial judge, who directly inquired whether it was the desire of counsel to put it in evidence, this important document was neither received nor offered as an exhibit. There is in the record testimony that the lease was executed "on or about" September 7, 1926, and there is testimony that it was executed "on or about" September 8, 1926; there is testimony from which the inference may be drawn that the agreement came first and other testimony that the lease was the first of the documents to be executed, but we have not been *Page 704 referred to, nor have we found any testimony as to, the exact date of the execution of the lease. (1) The finding of the trial court that the lease was executed on September 8, 1926, and after the execution of the commission agreement, is supported by the evidence. It may be added that, under the theory of defense here advanced by appellant, the burden of establishing that the lease was executed before the commission agreement was upon appellant. The other points raised by appellant depend upon his theory that the evidence showed that the execution of the lease preceded the commission agreement, and that, under the terms of the latter, no commission would become due and payable until the transaction between the lessee and lessors, involving the financing of proposed construction, were completed. With the supported findings of fact of the trial court against this theory of the facts, the rules of law applicable to such a theory are not applicable here. [2] (2) The commission agreement was drafted by appellant's co-defendant Baker, who appears to have acted as the spokesman for defendants, and we may therefore assume that it expresses the intent and knowledge of appellant at the time of its execution. It recites that P. Westergard, a realty broker, "is negotiating a tenant" for the lease of the lots in question. It stipulates for an agreed commission "if deal is consummated", to be paid "when said transaction is completed and papers come out of escrow". The words "deal" and "said (italics ours) transaction" can refer only to the only "deal" and "transaction" mentioned in the agreement, to wit: The "negotiating" of a tenant for a lease of the lots. Excluding the last five words in the body of the agreement, it clearly provides that the first payment of the commission became due when the lease was negotiated and executed. This leaves for consideration the five words "and Papers come out of escrow". No other subject being mentioned in the agreement, the reference can only be to papers and an escrow concerned in the "deal" and "said transaction", in other words, to the consummation of the lease. [3] (3) As the lease was executed by defendants, the lessors, without the formality of a preceding escrow, the condition of the agreement relating to papers coming out of escrow was thereby waived by the said lessors and the time *Page 705 for the payment of the commission was no longer contingent upon such escrow. [4] Appellant contends that the term "escrow" refers to an escrow entered into between the lessor and lessees involving the financing of the swimming pool project. There is nothing to show that the real estate broker's commissions here involved had any connection with any such escrow or that he had any duties to perform in connection therewith; in fact, there is direct testimony that he had nothing to do with the financing of the proposed structure. The judgment is affirmed. Craig, Acting P.J., and Thompson (Ira F.), J., concurred. A petition for a rehearing of this cause was denied by the District Court of Appeal on November 25, 1931, and the following opinion then rendered thereon: