McCluskey

This is an appeal by the executors of the last will and testament of Charles H. S. Rule, deceased, from an order of the probate court fixing and allowing a broker’s commission, and directing payment thereof by the executors, to respondent real estate broker Alex McCluskey, upon the sales to a purchaser secured by respondent of certain real and personal property of the Rule estate. The substance of appellants’ contention is that the evidence fails to support the interpretation which the trial court (sitting in probate) placed upon a written contract between appellants and respondent relative to the procurement of a purchaser, and that therefore such court erred in allowing respondent a commission *5 on the sales. We have concluded that the evidence is not as a matter of law insufficient to support any essential implied finding and that the order appealed from must be affirmed.

The respondent Alex McCluskey, doing business under the firm name and style of McCluskey Realty Company, Santa Rosa, California, at all times concerned was a duly licensed real estate broker and his son C. E. McCluskey was a licensed salesman employed by the father. They carried on their business…

I dissent. The majority opinion holds that this court is bound by the implied interpretation of the agreement of September 23, 1942, by the trial court because “ [conflicting] inferences may be drawn from the contract and the surrounding circumstances.” The very possibility of what the majority opinion calls conflicting inferences, actually conflicting interpretations, far from relieving the appellate court of the responsibility of interpretation, signalizes the necessity of its assuming that responsibility. It is established that in the absence of conflicting extrinsic evidence the appellate court must make its own interpretation of the instrument, displacing the interpretation of the trial court if they are inconsistent. (Estate of Platt, 21 Cal.2d 343, 352 [ 131 P.2d 825 ] ; Moffat v. Tight, 44 Cal.App.2d 643, 648 [ 112 *18 P.2d 910 ] ; Mitchel v. Brown, 43 Cal.App.2d 217, 222 [ 110 P.2d 456 ] ; Texas Co. v. Todd, 19 Cal.App.2d 174 [ 64 P.2d 1180 ] ; Wall v. Equitable Life Assur. Soc., 33 Cal.App.2d 112 [ 91 P.2d 145 ] ; see O’Connor v. West Sacramento Co., 189 Cal. 7, 18 [ 207 P. 527 ]; California W. D. Co. v. California M. O. Co., 178 Cal. 337, 341 [ 177 P. 849 ] ; Brant v.…