
    [Civ. No. 2021.
    First Appellate District.
    April 14, 1917.]
    K. KARAHADIAN, Respondent, v. PHILIP LOCKETT, Appellant.
    Vendor and Purchaser—Contract for Purchase—Favorable Report of Attorneys—Construction.—A clause in a contract for the purchase of real property calling for a favorable report' from the attorneys for the purchaser is not to be construed to mean that the obligation of the purchaser was dependent upon a mere arbitrary, capricious, and whimsical rejection of the title.
    Id.—Broker’s Commissions—Sale of Real Estate.—A broker employed t'o sell real estate is entitled to his commissions where the purchaser procured by him enters into a valid and enforceable contract to purchase, and the fact that the contract contains a clause making the purchase conditional upon the approval of the title by the purchaser’s attorneys does not have the effect of making the contract merely an agreement for an option to purchase rather than a completed contract of purchase and sale.
    APPEAL from a judgment of the Superior Court of Fresno County, and from an order denying a new trial. H. Z. Austin, Judge.
    The facts are stated in the opinion of the court.
    Everts & Ewing, for Appellant.
    John Shishmanian, Barbour & Cashin, and D. A. Cashin, for Respondent.
   LENNON, P. J.

The plaintiff in this action was employed and authorized by the defendant “to sell” certain real property belonging to the defendant, and “to receive any deposit” which might be paid on account of the purchase price. Thereafter the plaintiff, as the agent of the defendant, entered into a written contract with parties known as “Kludgian brothers” to purchase the defendant’s property for the sum of fourteen thousand dollars, but upon terms slightly different from those originally proposed and authorized by the defendant. The defendant, however, in writing ratified the contract thus made by the plaintiff,' and accepted from him the sum of two hundred dollars which, simultaneously with the execution of the contract, had been paid to plaintiff by the intending purchaser on account of the purchase price. In addition to containing all of the essentials of a valid and enforceable contract óf purchase and sale, the contract in question provided that “upon a favorable report of the attorneys” for the purchaser concerning the title to the property, the parties thereto would enter into an agreement for the purchase of the property “upon the terms and conditions therein mentioned.” Subsequently the attorney for the purchasers rejected the title to the property for alleged defects, which it is admitted did not exist, or if existing could have been readily cured. Ultimately the purchaser refused upon demand to perform his contract, and declined the defendant’s tender of a deed to the property. The defendant had agreed to pay the plaintiff five per cent of the purchase price in the event of a sale. Upon substantially these facts the ease was tried in the court below and judgment rendered for plaintiff in the sum of seven hundred dollars, upon a finding to the effect that the plaintiff had procured a purchaser for defendant’s property who had entered into a valid and enforceable contract binding him to purchase. The evidence we think supports this finding.

The clause in the contract concerning the necessity for a favorable report upon the title to the property from the attorneys of the purchaser cannot be construed, as counsel for the defendant contends, to mean that the obligation of the purchaser was dependent upon a mere arbitrary, capricious, and whimsical rejection of the title to the property by his attorney. Obviously the clause in question did not have the effect of making the contract here involved merely an agreement for an option to purchase, rather than a completed contract of purchase and sale. The payment of the deposit of two hundred dollars on account of the purchase price was an acceptance of the terms and conditions of the contract (Benson v. Shotwell, 87 Cal. 49, [25 Pac. 249, 681]; Easton v. Montgomery, 90 Cal. 307, [25 Am. St. Rep. 123, 27 Pac. 280]); and while it savored to some extent of a preliminary contract which contemplated that it would be followed by another contract of purchase and sale, nevertheless inasmuch as it was mutually obligatory and contained in and of itself all of the essentials of a valid and enforceable contract, obviously the defendant, had he so desired, could have compelled the intending purchaser to perform, and therefore neither the latter’s refusal to accept the deed tendered to him, nor his failure to enter into the second contract, could operate to defeat the plaintiff’s right to recover his commission from the defendant.

The judgment and order appealed from are affirmed.

Richards, J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 11, 1917.  