Abbott v. Grant, 7836

• Citation: 73 Idaho 77,245 P.2d 797
• Decision Date: 18 June 1952
• Docket Number: No. 7836,7836
• Parties: ABBOTT v. GRANT et al.
• Court: Idaho Supreme Court

Page 797

245 P.2d 797

73 Idaho 77

ABBOTT v. GRANT et al.

No. 7836.

Supreme Court of Idaho.

June 18, 1952.

Paul C. Keeton, Lewiston, for appellant.

J. H. Felton, William J. Jones, Lewiston, for respondents.

PORTER, Justice.

To appellant's third amended complaint, respondents, Harley L. Grant, Administrator of the Estate of Benjamin F. Huggins, Sr., deceased, and Mary L. Grant filed a general demurrer; and the remaining respondents filed a general and special demurrer. The special demurrer alleges a misjoinder of parties defendant and a misjoinder of causes of action. The trial court sustained the demurrers and, appellant having refused to plead further, dismissed the action. From the order and judgment of dismissal, appellant appeals to this court.

The only matter presented by appellant's specifications of error is that the trial court erred in sustaining the demurrers and entering judgment of dismissal. In order to consider and evaluate the trial court's action we summarize the complaint.

By his first cause of action in the third amended complaint, appellant alleges that he is a duly licensed real estate broker; that on the 13th day of June, 1949, appellant entered into an agreement with respondents providing 'that any property, real or personal, listed with the undersigned agent by the undersigned sellers shall be sold by said agent for a commission of 5% of the amount of each of such sales, confirmed by the court'; and that said contract was approved by the Probate Court of Nez Perce County on June 23, 1949.

That pursuant to said agreement appellant was given a written listing for sale of the real and personal property belonging to the Huggins Dairy; that thereafter appellant entered into negotiations with the Green Top Dairy Farms, Inc., for the purchase of the Huggins Dairy; and thereafter notified respondents that he had procured a buyer for such property, upon terms to be agreed upon by the prospective buyer and prospective sellers. Whereupon appellant and respondents entered into a new agreement with reference to the commission to be paid appellant which agreement was in writing as follows:

'Agreement

'This Agreement, Made this 15th day of September, 1950, by and between the undersigned owners and the undersigned real estate agent:

'It Is Agreed, that if the agent sells Lot Sixteen (16), Fifteen (15) and the North 40.5 feet, and the South 9.5 feet of the East Sixteen (16) feet of Lot Fourteen (14), of Wood Street Addition to the City of Lewiston, Nez Perce County, Idaho, and the Huggins Creamery business, all as now being negotiated with Green Top Dairy Farms, Inc., the undersigned owners will pay to the said agent the sum of $5,000.00 as a commission at such time as the total payments made equal $12,000.00, which will be at the same time that the note and real estate and chattel mortgages are executed pursuant to an agreement now being prepared between the undersigned as owners, and said Green Top Dairy Farms, Inc.

'The undersigned eight (8) owners own a 60% undivided interest in the property being sold, and the undersigned Harley L. Grant, as administrator of the Estate of Benjamin F. Huggins, Sr., deceased, owns an undivided 40% interest in the property therein sold. The said commission shall be paid in the proportions in which said owners hold their interests.

'In Witness Whereof, The parties have hereunto set their hands and seals the day and the year first above written.'

That said proposed agreement was thereafter on November 28, 1950, submitted to the Probate Court of Nez Perce County for approval and an order was duly entered by said court on said date approving such agreement and authorizing the administrator to enter into said commission contract.

That at all times mentioned in the complaint 40 percent of the property involved was owned by the Estate of Benjamin F. Huggins, Sr., deceased, and 60 percent by the other respondents.

That on or about the 29th day of December, 1950, a Return of Sale of Real and Personal Property at Private Sale and Petition for Confirmation were filed with the Probate Court of Nez Perce County alleging that the real and personal property involved had been sold to the Green Top Dairy Farms, Inc., and setting out the terms of the sale; that said sale was duly confirmed by order of the probate court dated January 10, 1951, which order contains the statement 'that said Purchaser was procured by J. V. Abbott, pursuant to Agreement entered into with the said Real Estate Agent September 15, 1950, which agreement with said Real Estate Agent and the Order of Court authorizing the same, are on file herein.'

That on or about the 15th day of January, 1951, at least $12,000 had been paid by the Green Top Dairy Farms, Inc., to respondents on account of said sale and the Green Top Dairy Farms, Inc., had executed the chattel mortgages, real estate mortgages and note required; and that by virtue thereof the respondents, except the respondent estate, became obligated to pay appellant the sum of $3,000 but have failed and refused to pay same or any part thereof.

By his second cause of action, appellant realleges the same facts set out in his first cause of action and further alleges that the Administrator of the Estate of Benjamin F. Huggins, Sr., deceased, by reason thereof became obligated to pay appellant the sum of $2,000 but has failed and refused to pay same or any part thereof.

The two commission agreements, the petitions for their approval, the orders of the probate court approving same, the Return of...