Gulart

The plaintiff was given judgment for $3,500, with interest thereon, alleged to be due as commissions for the sale of defendant's land. The defendant's motion for a new trial was denied and this appeal is from the judgment. The court found that on the twenty-fourth day of May, 1919, the defendant executed and delivered to plaintiff a writing containing the following provisions: "I have this day placed with John Gulart for sale the property described on the reverse side of this card, of which I am the owner. The said John Gulart shall have the sole and exclusive agency of the property for nine months from date hereof and I authorize him to sell and convey, and contract with the purchaser for the sale and conveyance by good and sufficient title to said property, according to the prices and terms of payment herein specified. . . . Price of property to be $30,000.00 net. If the said property be sold or disposed of during the period above stated . . . I agree to pay John Gulart a commission as follows: All over and above $30,000.00 when sale is complete. . . . Terms: All cash, or $13,000.00 cash and balance to be encumbrance paid in 8 years from date of sale. Notes to bear interest at 6…

In respondent’s petition for a rehearing it is urged that “the word 1 encumbrance' used in the listing contract . . . was understood by Gulart to mean a mortgage, and that plaintiff was led so to believe by defendant’s statements made at the time such contract was executed. It is argued that because the defendant had so misled the plaintiff the latter became entitled to a commission when the Sequerias agreed to purchase the property subject to such mortgage. Counsel, however, overlook the fact that the plaintiff alleged and the court found, on sufficient evidence introduced by plaintiff, that at the time the listing contract was executed “the legal title to said premises was . . . vested in F. T. Freitas and V. T. Freitas, subject to an agreement of purchase and sale whereby said F. T. Freitas and V. T. Freitas agreed to sell said premises to defendant . . . and that at all times said defendant owed the sum of $17,000.00 or thereabouts on the purchase price of said premises under said contract . . . and that at the time of execution of said listing it was the understanding of plaintiff and defendant . . . that in case said purchase price of $30,000.00 was not paid in cash, the…

The plaintiff was given judgment for $3,500, with interest thereon, alleged to be due as commissions for the sale of defendant’s land. The defendant’s motion for a new trial was denied and this appeal is from the judgment.

The court found that on the twenty-fourth day of May, 1919, the defendant executed and delivered to plaintiff a writing containing the following provisions: “I have this day placed with John Gulart for sale the property described on the reverse side of this card, of which I am the owner. The said John Gulart shall have the sole and exclusive agency of the property for nine months from date hereof and I authorize him to sell and convey, and contract with the purchaser for the sale and conveyance by good and sufficient title to said property, according to the prices and terms of payment herein specified. . . . Price of property to be $30,000.00 net. If the said property be sold or disposed of during the period above stated ... I agree to pay John Gulart a commission as follows: All over and above $30,000.00 when sale is complete. . . . Terms: All cash, or $13,000.00 cash and balance to be encumbrance paid in 8 years from date of sale. Notes to bear interest at 6…