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Superior Court of the State of California County of Placer

Paige Romine

Case No ASC 3454

vs

STATEMENT OF DECISION

Defendant

Michelle Ing

The above entitled matter was heard on 14 Sept 2007 in Department 6 before Judge Joe 0' Flaherty. Based on the evidence presented, the court now finds as follows:

The plaintiff has an alpaca ranch and brokered the sale of one animal, named Docia May, for the defendants who were Docia's owners. The brokerage fee would be 10%. A potential buyer and customer of the plaintiff, MacDonald, was put in contact with the defendant-owner. Docia was bought by the MacDonald's for $12,500 which meant a brokerage fee to the plaintiff of $1 ,250.

The parties further negotiated and in lieu of the $1250 a male alpaca was furnished to the plaintiff for breeding. The breeding was successful. Necessary papers for the newborn alpaca would be provided by the defendant.

The original sale to the MacDonalds, who are witnesses at trial, fell out.

This court held at trial and still does that since the breeding was in lieu of the $1250 fee, the parties had impliedly agreed that the breeding was worth $1250, and so the amount in controversy would be $1250.

Also as explained at trial the court would treat the sale of Docia as a typical brokerage, where if the seller backs out from a referral of a willing, able buyer the seller owes the broker a commission. Otherwise no commission is owed.

The sale to the MacDonalds was by a written integrated agreement for full payment within 30 days. The MacDonalds testified that with $9500 remaining to be paid and before the 30 days expired they sent a check for $4500 to the defendant and asked orally for more time. There was conflict in the evidence as to the response. Without more the court would hold the integrated contract was not modified. However the plaintiff and Macdonalds presented evidence that the defendant cashed the $4500 check several weeks after the 30 day period. This court holds after

research that the check cashing constituted, given the facts of this case, a waiver of the 30 day clause. About 4 to 6 weeks later the MacDonalds sent another $2500 check and were trying to negotiate a final check for the balance. They also testified as to verbal communication with the defendant where he told them he decided not to sell Docia. Defendant denies those statements.

Without resolving the oral conflict the court holds that the MacDonalds did not breach their sales agreement for Docia. Once the specific 30 day requirement was waived (see above) time for payment would be "reasonable" within the context of the contract. Here the evidence is that the MacDonalds were prepared to pay within several weeks. The court holds that this is reasonable.

Therefore the MacDonalds did not breach and proved to be a able buyer. The defendant owes a commISSIOn.

Holding

Verdict for plaintiff. Defendant will furnish appropriate ARI breeding documents. Plaintiff is the prevailing party. $75 costs to plaintiff

(0 (d-( [) ~ (~ ~c11-

Judge Joe O'Flaherty Judge of the Superior Court

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