Wilson

Defendant Eileen Lewis appeals from a judgment awarding (1) plaintiffs Wilson (the Wilsons) damages for breach of a contract to sell a piece of residential property (the property), and (2) plaintiffs Eugene H. Upton dba Century 21 Upton Associates, Century 21 Upton Associates, Inc. (Century 21), real estate brokers, and Steven Anny, their salesman, a commission on the subject transaction.

Several issues are raised by the parties on the appeal. None of them relates to what we find to be the critical issue of the legal effect of the Wilsons' conditional and postdated "good faith" deposit check upon the subject transaction. Moreover, we observe that although the issue was raised by the pleadings, and evidence on the point was uncontroverted, it otherwise went unmentioned at the trial.

(1) Although issues not raised at trial will ordinarily not be considered on appeal (see 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 276, pp. 4264-4265), it is settled law that where the point is presented, as here, by noncurable undisputed evidence, and raises a pure question of law, it may be so considered for the first time. (See Hale v. Morgan (1978) 22 Cal.3d 388, 394…