Bass Inv. Co. v. Banner Realty, Inc., 9056--P

• Decision Date: 08 February 1968
• Docket Number: No. 9056--P,9056--P
• Parties: BASS INVESTMENT CO., Inc., an Arizona corporation, Appellant, v. BANNER REALTY, INC., an Arizona corporation, Appellee. r.
• Court: Arizona Supreme Court

Page 894

436 P.2d 894

103 Ariz. 75

BASS INVESTMENT CO., Inc., an Arizona corporation, Appellant, v. BANNER REALTY, INC., an Arizona corporation, Appellee.

No. 9056--P.r.

Supreme Court of Arizona, In Banc.

Feb. 8, 1968.

Rehearing Denied March 5, 1968.

Evans, Kitchel & Jenckes, by Joseph S. Jenckes, Jr., Phoenix, for appellant.

Leibsohn, Goldstein & Weeks, by Philip T. Goldstein, Phoenix, for appellee.

McFARLAND, Chief Justice:

This case is before us on a petition for review of a decision of the Court of Appeals in case number CA--1--CIV 352, 5 Ariz.App. 478, 428 P.2d 142, reversing a judgment of the Superior Court in favor of plaintiff-appellee. The decision of the Court of Appeals is vacated.

Plaintiff-appellee Banner Realty, Inc., hereinafter called Banner, sued defendant-appellant Bass Investment Co., Inc., hereinafter called Bass, to collect a real-estate commission. The trial judge, sitting without a jury, found for plaintiff and entered judgment in its favor.

O. D. Messinger, an employee of Banner, was acquainted with Frank Hegebeck, a prospective buyer for a trailer park. On March 22, 1963, Messinger commenced a series of telephone calls to Bass for the purpose of getting an appointment to obtain a listing for Papago Trailer Park owned by Bass. On March 28 he obtained a written open (non-exclusive) listing from R. R. Burks, stockholder, director, secretary-treasurer, and man-in-charge of Bass Investment Co. The selling price in the was $186,000. Burks advised Messinger that the park was listed with McCracken Realty Co. for the same price, and that one T. N. Anderson, a real estate broker in Bass's realty division was also attempting to sell the park. The commission for the sale was to be six per cent ($11,160), which would leave Bass with a net amount of $174,840.

During the next few days Messinger engaged in an intensive effort to sell the park to Hegebeck. There were repeated meetings and discussions, and inspections of the grounds. Whether these efforts would have been successful will never be known because Bass's employee Anderson advertised the park in the newspaper, causing Hedgebeck to contact him on April 2d to ask the price. On being told the price was $175,000. Hegebeck expressed interest, and Anderson made an appointment for that afternoon to discuss the matter. The advertisement did not specifically mention the location of the park, but when the men met, Anderson revealed that the advertisement referred to Papago Trailer Park. Hegebeck immediately told him that Messinger, of Banner Realty, had shown him the park one week earlier. Anderson expressed surprise, stated that he did not know that any one else had the listing, and that he would have to consult Burks before proceeding further. He went back to the office where he told Burks of the new development, and Burks said that Messinger 'did not follow through,' but that he would give him 'some consideration' anyway, and told Anderson to go ahead with his attempt to interest Hegebeck. On April 3d, Anderson brought Hegebeck and his wife to Burks's office and in Burks's presence filled in a form entitled 'Purchase Contract and Receipt,' a copy of which appears here. It was conceded that Anderson executed the instrument at the direction, and in the presence, of Burks.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On April 1st Messinger mailed to Burks a notice that he was dealing with Hegebeck on the park, as Burks had previously told him that he would protect Messinger on his commission with respect to prospects of whom he had notice. Burks admitted receiving the notice, and admitted that he knew about Hegebeck's connection with Messinger before the 'contract' was executed.

Messinger was unable to contact Hegebeck until April 10th, at which time he learned that Anderson had offered the property to Hegebeck for $175,000. He told Hegebeck that he would contact Bass and try to get the property for less than the $186,000 which he had previously quoted. On April 11th Messinger and his broker Harry Simmons went to see Burks who told them that no sale had been made, and that, if they would accept $500 for their commission, the sale could be completed, but that he could not sell for $175,000 and pay the full commission. Banner then started this action for the full commission, and attached the park, making it nearly impossible to complete the sale. On July 26th Hegebeck paid another $12,000 to Bass and either took possession of, or worked around, the park in the hope that he would soon own it.

About a year prior to the above events, Bass had held a meeting of its board of directors and passed a resolution authorizing Burks to execute 'any and all documents pertaining to the operation of the Bass Investment Company, Inc.'

We think that two principles of law relating to real-estate commissions are undisputed: (1) If a licensed real estate salesman has a listing for a piece of property, and brings to the owner a buyer ready, willing, and able to pay the price at which the property is listed, he has earned his commission, regardless of whether the owner sells or refuses to sell, and (2) If such salesman brings to the owner a buyer who is willing and able to buy at a price below the listed price, the commission is earned if, but only if, the owner actually sells the property or is willing to sell to that buyer. Lockett v. Drake, 43 Ariz. 357, 31 P.2d 499; Fink v. Williamson, 62 Ariz. 379, 158 P.2d 159; Tucker v. Green, 96 Ariz. 371, 396 P.2d 1.

In Fornara v. Wolpe, 26 Ariz. 383, 226 P. 203, we said:

'* * * While the pleading and proof are that appellee was given certain terms upon which the property would be leased, yet, if he brought it to the notice of the person who afterwards purchased it, the fact that the owners themselves consummated the deal and voluntarily took a less sum than that given appellee would not deprive the latter of his right to the commission. * * *'

The only issue involved here is whether a sale was made. The answer depends upon the voluminous and contradictory facts of the case, and upon the proper interpretation of the 'contract.' That document is a living monument to the type of problems that may be expected when a layman attempts to...