Barrett v. Land Mart of America Inc., CA

• Decision Date: 14 October 1981
• Docket Number: No. CA,CA
• Citation: 3 Ark.App. 70,621 S.W.2d 889
• Parties: Tommy BARRETT d/b/a Barrett Real Estate, Appellant, v. LAND MART OF AMERICA, INC., Appellee. 81-101.
• Court: Arkansas Court of Appeals

Page 889

621 S.W.2d 889

3 Ark.App. 70

Tommy BARRETT d/b/a Barrett Real Estate, Appellant, v. LAND MART OF AMERICA, INC., Appellee.

No. CA 81-101.

Court of Appeals of Arkansas.

Oct. 14, 1981.

Ridgeway, Burtness, Switizer, P.A., Hot Springs by David B. Switzer, for appellant.

Wood, Smith & Schnipper by Harry E. Cook, Jr., Hot Springs, for appellee.

GLAZE, Judge.

This case involves the construction of a written agreement entered into between Land Mart of America, Inc. (Land Mart) and Barrett Real Estate (Barrett). Both parties are in the real estate business. Under their agreement, Land Mart was to find prospective purchasers for properties listed for sale by Barrett. Land Mart maintains advertising and service facilities whereby property is presented for sale to potential purchasers throughout the United States. The parties agreed that when listed property was sold by Barrett, Land Mart and Barrett would divide commissions derived and collected from each sale 25% and 75% respectively.

A dispute arose between the parties when Barrett elected to terminate its relationship with Land Mart, giving Land Mart thirty days notice in accordance with the terms of the written agreement. At the time of termination, purchasers had been secured through the efforts and services of Land Mart in connection with two separate properties listed by Barrett. In one case, a sale had already been consummated and one-half of the commission had been collected and duly split between Barrett and Land Mart before the parties' agreement was terminated. In the second instance, the sale of property was not consummated until after the agreement ended. In both cases, Barrett refused to pay Land Mart any further commissions Barrett received after it terminated its agreement with Land Mart. In refusing to pay, Barrett relies on the following terms set out in paragraph (14) of the parties' contract:

(14) Commissions and net forfeited deposits secured and received during the term of this contract as a result of the sale of property sold by or through Representative (Barrett) or his assistants or associates shall be divided as follows: 75% Representative, 25% for Land Mart on all gross commissions. (Emphasis supplied.)

Barrett argues, simply, that at the time it terminated the agreement with Land Mart, Barrett had not received one-half of the commission in the first sale and none of the commission in the second sale. Since these commissions were not "received" when it terminated the agreement, Barrett contends Land Mart is not entitled to its 25% share. In both instances, Barrett did receive commissions after the agreement was terminated. Of course, if the terms of the parties' agreement were effective, Land Mart would be entitled to its 25% share of the commissions, viz., $1,387.50. The trial court rejected Barrett's argument and entered judgment in favor of Land Mart. We agree and affirm the lower court's decision.

First, it is important to note that Barrett never challenged the fact that Land Mart was the procuring cause of the eventual sales considered in this appeal. In this connection, we note that Arkansas adheres to the general rule that a broker is entitled to his commission if he is the procuring cause of an eventual sale concluded between the owner and purchaser. Storey v. Johnson, 270 Ark. 392, ...