Barrett v. Ballard, 80-195

• Decision Date: 24 December 1980
• Docket Number: No. 80-195,80-195
• Citation: 191 Mont. 39,622 P.2d 180,37 St.Rep. 2038
• Parties: Patricia BARRETT, Plaintiff and Respondent, v. Lorna BALLARD, Defendant and Appellant.
• Court: Montana Supreme Court

Page 180

622 P.2d 180

191 Mont. 39

Patricia BARRETT, Plaintiff and Respondent, v. Lorna BALLARD, Defendant and Appellant.

No. 80-195.

Supreme Court of Montana.

Submitted on Briefs Nov. 26, 1980.

Decided Dec. 24, 1980.

Bridger Law Office; Joseph E. Mudd, Bridger, for defendant and appellant.

Stephen M. Barrett, Boseman, for plaintiff and respondent.

HARRISON, Justice.

This is an appeal from a judgment of the District Court to recover damages in the form of a commission from the sale of real estate. The matter was tried to a jury which returned a verdict for plaintiff in the amount of $4,200 plus interest and costs. From this judgment, defendant appeals.

This matter began with a real estate contract, dated March 7, 1975, between respondent realtor and appellant seller. In that contract a written listing agreement was signed setting forth a listing period of six months. On September 7, 1975, respondent and appellant entered into another listing agreement for the same property. During the entire period of the listing, respondent advertised the property in the Billings Gazette and showed the property to several prospective buyers.

Both the first and second listing agreements were signed only by Lorna Ballard and not by her husband, Virgil Ballard. On September 7, the time of the signing of the second listing, respondent showed appellant a list of all parties who might be interested in the property.

On September 20, 1975, respondent advertised the land for sale erroneously as "under $6,000" instead of "$106,000." As a result of this advertisement, William Scilley of Billings, Montana, called respondent about the property. Scilley came from the area in which the land was located and stated that he was interested in purchasing it. Contrary to her usual procedure, respondent gave Scilley the location of the property and the name of owner over the phone.

Several days after this call, respondent went to Billings and discussed the property, terms, and possible methods of payment with the potential and eventual buyer, William Scilley. Later respondent went to the property to discuss the sale with appellant, Lorna Ballard. When she arrived, Scilley was there talking with Virgil Ballard, appellant's husband. At that time respondent talked to appellant and discussed the buyer, the amount of money that would be required at closing to pay off the underlying mortgages and other necessary information regarding the sale. Respondent then left the property.

On the same day, Scilley made an offer for the purchase of the property. This offer was neither accepted nor rejected by appellant and her husband. Appellant and her husband continued to negotiate with Scilley without advising respondent of these negotiations. A short time later, appellant's husband went to Billings and met with Scilley at his place of business. Virgil Ballard attempted to accept the first offer made by Scilley; however, he was informed that that offer was no longer up for consideration. During that meeting, however, Scilley and Ballard did reach an agreement regarding the sale of the property at a price less than originally offered by Scilley. This agreement was eventually reduced to writing, and the contract for deed was executed in the amount of some $70,000.

During this time appellant made no attempt to make respondent aware of the continued negotiations and efforts with Scilley. Respondent had no opportunity to become involved because appellant did not keep her informed.

Upon learning of the sale, respondent called appellant and requested a commission. Appellant wrote to respondent and acknowledged that respondent had initially obtained the eventual buyer. In one letter appellant stated that she felt she owed respondent something and would pay $50 a month until the commission was paid. Since payments of $50 a month would take a number of years, respondent suggested that appellant borrow the amount from the bank. After repeated requests for her commission failed, respondent brought this suit against appellant.

Appellant presents seven issues for our consideration.

The first issue is whether the listing agreement dated September 7, 1975, was sufficient to sustain a real estate commission (a) under any facts, and/or (b) under the facts of this case.

Appellant argues that the agreement is inadequate on its face for several reasons: (1) The writing does not adequately identify the property to be sold. (2) The listing does not define its terms. (3) The writing itself does not meet the requirements of specificity.

Relying on section 28-2-603, MCA, which provides, "(w)here a contract has but a single object and such object is ... wholly impossible of performance or so vaguely expressed as to be wholly unascertainable, the entire contract is void," appellant argues that in view of the fact that a portion of the property was owned solely by Virgil Ballard and he did not sign the agreement or agree to sell the property, the listing on its face could not be performed. 17 Am.Jr.2d Contracts, § 7 at 342. Therefore, appellants argues, the contract is void and impossible of performance.

It has long been recognized that a cotenant in joint tenancy has a right and ability to sell her interest. See 20 Am.Jur.2d Cotenancy and Joint Tenants, § 16 at 109, which states:

"Any act of a joint tenant which destroys one or more of its necessarily coexisting unities operates as a severance of the joint tenancy and extinguishes the right of survivorship. The act of one joint tenant in severing his interest in the property by alienation severs the joint tenancy to that extent, so that if there were but two tenants, the joint tenancy is terminated."

This is the law in Montana. See State Board of Equalization v. Cole (1948), 122 Mont. 9, 195 P.2d 989, where the Court construed Section 6680 of the Revised Codes of Montana 1935, which provided a definition of joint interest almost identical to the one existing in today's codes. Construing that statute, the Court said:

"... For example either co-tenant of a joint tenancy in real property could sever the estate by conveying his interest to a third party and as between the remaining co-tenant and the transferee the new estate became a tenancy in common..." 195 P.2d at 994.

See also Cooley v. Veling (1973), 19 Ariz.App. 208, 505 P.2d 1381; Place v. Carmack (1974), 33 Colo.App. 411, 522 P.2d 592; Gilles v. Norman Plumbing Supply Company of Oklahoma City, Inc. (Okl.App.1975), 549 P.2d 1351; Nelson v. Davis (Utah 1979), 592 P.2d 594.

Appellant relies on the authority set forth in 17 Am.Jur.2d, supra, to support her contention that this is a void contract. We find that although the citation is the correct holding of the law as a general rule, it is not relevant here as the authority is distinguishable on facts. In addition, she argues that the contract is impossible of fulfillment. A California court has noted that "(t)he burden of proving the defense of impossibility is on the party asserting it." Hensler v. City of Los Angeles (1954), 124 Cal.App.2d 71, 268 P.2d 12.

Just why the contract is impossible to perform on the part of appellant is not clear. Appellant was free and capable of acting without her husband, even though here the husband knew at all times she had put the property up for sale. The previously cited cases indicate that she has a right to sell. She is capable of entering and performing contracts and being legally responsible for her acts. Impossibility of performance is a strict standard that can only be maintained where the circumstances truly dictate impossibility. See Smith v. Zepp (1977), 173 Mont. 358, 567 P.2d 923, 927, where this Court held: "The general rule is that, where a party to a contract obligates himself to a legal and possible performance, he must perform in accordance with the contract terms." The fact that a party contracts to sell something he does not own does not raise the defense of impossibility. He may be held liable when he rescinds without legal justification. Federal Deposit Ins. Corporation v. Peterson (1937), 104 Mont. 447, 67 P.2d 305.

In addition, appellant raises the issue that the contract should be declared void due to vagueness. Here, appellant protests too little and too late. No objection of vagueness were made at the time of the signing of the real estate agreement. No objection of vagueness was made at the time the property was advertised for sale. No vagueness argument was made when respondent brought people to the property. There was not any objection of vagueness at the time Scilly made his offer, and no objection of vagueness at the time the sale was consummated. Vagueness was not raised during the trial and, therefore, is not properly before us on appeal.

Appellant participated in this contract throughout its entire existence. Where vagueness or imprecision in a contract is raised, the courts have set a standard for resolving such questions. In S-W Co. v. Schwenk (1977), 173 Mont. 481, 568 P.2d 145, this Court said:

"Where ambiguity does exist on the face of the contract, the question of the parties' intent as to the language involved is submitted to the trier of fact. (Citation omitted.) Ambiguity exists when a contract taken as a whole in its wording or phraseology is reasonably subject to two different interpretations. (Citations omitted.) ..." 568 P.2d at 147.

As we have previously noted, the trier of fact must take the contract as a whole. We stated further in Schwenk :

"When a contract is ambiguous, the language of the parties must be considered in light of subject matter and the surrounding circumstances, as well as the positions of the parties at the time the contract was made. (Citations omitted.) ..." 568 P.2d at 148.

Here, the surrounding circumstances and the positions of the parties clearly indicate their intent to enter into an agreement and to perform that agreement. The parties entered into a written agreement; at the expiration of...