187 F2d 1021 Burnham v. Abegglen

187 F.2d 1021

BURNHAM et al.

No. 12648.

United States Court of Appeals Ninth Circuit.

March 23, 1951.

J. D. Skeen, Perry H. Burnham, Salt Lake City, Utah, for appellants.

Grover A. Giles, Salt Lake City, Utah and Jess B. Hawley, Jr., Boise, Idaho, for appellee.

Before ORR and POPE, Circuit Judges, and FEE, District Judge.



The Trial Court found Abegglen was employed by the Burnhams by "contract in writing to sell certain real and personal property," as agent, for $140,000, providing he "should receive a commission of $6,000 in the event he sold said property," that Abegglen interested the Randalls, and an agreement was executed between the Burnhams and the Randalls for sale and purchase of said property at the price asked, that "plaintiff [Abegglen] was free from misconduct, concealment or misrepresentation in all of his dealings with defendants [Burnhams]." After learning of a supposed inadequate security for performance on the part of one of the Randalls, the contract of purchase and sale was modified by mutual consent of the Burnhams and the Randalls, and subsequently, for a consideration moving to the Burnhams, a rescission of the modified contract of purchase and sale was entered between the Burnhams and the Randalls, "without the knowledge, consent or approval of the plaintiff [Abegglen]."


If these facts are found, there are no questions of law raised upon the record. The findings are supported by substantial evidence and are not "clearly erroneous." Therefore, these are binding upon us, and the judgment stands. Based on the findings, plaintiff was awarded commission in full.


We affirm upon the basis of the excellent opinion of the Trial Court, 91 F.Supp. 61.