Westergard

The petitioner suggests that there may be a misapprehension as to the fact as to whether the lease or the agreement for commission was executed first. We again call attention to the conflict in the evidence on this point, the failure of appellant's counsel to adopt the suggestion of the court to introduce the lease itself in evidence, and the rule that a finding of fact supported by the evidence at the trial is conclusive on appeal. Petitioner cites Alison v. Chapman, 36 Cal.App. 759 [ 173 P. 389 ], in support of his contention that the plaintiff would not be entitled to a commission until the lease was signed and the property financed to carry out the project of Whittier Pools, Inc. In the cited case the broker had secured a purchaser who offered a price less by $500 than that asked by the vendor, and after entering into an agreement of sale and the taking of a $500 deposit, the broker took up the matter with the vendor who accepted the deal as thus far made and agreed to pay the broker a flat commission "when the sale is consummated". The purchaser failed to further perform his part of the contract of sale. It was there properly held that the words "when the sale is consummated"…

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…