Bell v. Warren Development Corp., 6618

• Decision Date: 30 April 1974
• Docket Number: No. 6618,6618
• Citation: 114 N.H. 267,319 A.2d 299
• Parties: Mary J. BELL et al., d.b.a. P and B Real Estate v. WARREN DEVELOPMENT CORPORATION.
• Court: New Hampshire Supreme Court

Page 299

319 A.2d 299

114 N.H. 267

Mary J. BELL et al., d.b.a. P and B Real Estate v. WARREN DEVELOPMENT CORPORATION.

No. 6618.

Supreme Court of New Hampshire.

April 30, 1974.

Nedved & Senn, Nashua (Howard E. Nedved, Nashua, orally) for plaintiffs Mary J. Bell and Olga C. Packard.

Winer, Lynch, Pillsbury & Howorth, Nashua (Robert W. Pillsbury, Nashua, orally), for defendant.

LAMPRON, Justice.

Action to recover a broker's commission on an oral nonexclusive listing of real estate in Milford owned by the defendant corporation acting through its president Warren Snyder. Trial by jury before King, J. resulted in a disagreement. Defendant's exceptions to the denial of its motions for nonsuit, directed verdict, and for judgment 'notwithstanding the hung jury' were reserved and transferred. Such a transfer may be made under Rule 69 of the Superior Court if the presiding justice certifies 'that the exceptions raise important questions of law which justice and convenience require shall be determined in advance of further proceedings.' RSA 491:App.R. 69 (Supp.1973); see RSA 491:17.

There is no dispute about the terms of the listing made in March 1970. The sale price was $1,200,000, the seller was to net $50,000 in cash at the time of sale and take back a second mortgage, the broker was to receive a commission of 6%. It was also agreed that income tax considerations were important factors in the terms of the sale.

On or about August 11, 1970, plaintiffs submitted to Snyder an offer of $1,050,000 which he expressly rejected in a telephone conversation in the early evening of August 13. Plaintiffs testified that Snyder told then at that time that he had just refused an offer of $1,144,000 submitted by another agent from whom he expected to hear later that night. Plaintiffs also testified that around midnight that same evening they called Snyder again with an offer from Melrose Realty Trust for the listed price of $1,200,000 accompanied by a check of $2,000 as a binder. This offer was contained in a written instrument but the plaintiffs did not reveal its terms to Snyder at that time. The next morning, August 14, they arrived at Snyder's home at 7 a.m. accompanied by a constable to hand-deliver the offer and check. Snyder was absent and his wife did not accept the documents. Snyder testified that he had sold the property at 11 p.m. on August 13 to the client of the other agency for $1,200,000.

Our law is well settled that in order to be entitled to a commission the plaintiffs had to produce a buyer ready, willing and able to purchase the property on the terms and conditions specified by the seller. Philbrick v. Chase, 95 N.H. 82, 58 A.2d 317 (1948). It is equally well-established law here and elsewhere that if the terms proposed by the prospective purchaser vary in any material degree from those specified or accepted by the seller, the brokers have failed to fulfill the obligations they undertook and are not entitled to a commission. Dunn v. Staples, 109 N.H. 251, 248 A.2d 635 (1968); Menard v. Coronet Motel, Inc., 152 Conn. 710, 207 A.2d 378 (1965); Bowley v. Paine, 291 A.2d 712 (Me.1972); Annot., 18 A.L.R.2d 376, 379 (1957).

Plaintiffs' right to recover must stand or fall on the terms of the written offer made by Melrose Realty Trust. See 9 J. Wigmore, Evidence § 2427 (3rd ed. 1940). In that offer, introduced as an exhibit, Melrose agreed to pay the list price of...