Blais v. Remillard, 92-547

• Decision Date: 30 June 1994
• Docket Number: No. 92-547,92-547
• Citation: 138 N.H. 608,643 A.2d 967
• Parties: Joan BLAIS, d/b/a Joan Blais Realty v. Robert J. and Laurette REMILLARD.
• Court: New Hampshire Supreme Court

Page 967

643 A.2d 967

138 N.H. 608

Joan BLAIS, d/b/a Joan Blais Realty v. Robert J. and Laurette REMILLARD.

No. 92-547.

Supreme Court of New Hampshire.

June 30, 1994.

Devine, Millimet & Branch, P.A., Manchester (Richard E. Mills, on the brief and orally), for plaintiff.

Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (Eugene M. Van Loan, III, on the brief and orally), for defendants.

THAYER, Justice.

This case involves a claim for a real estate commission which the plaintiff, Joan Blais, d/b/a Joan Blais Realty, contends was owing from the defendants, Robert and Laurette Remillard. The plaintiff appeals the ruling of the Superior Court (Hampsey, J.) granting the defendants' motion for a directed verdict at the close of the plaintiff's case. We reverse and remand.

Based upon the record, a reasonable jury could have found the following facts. In May 1985, Joan Blais' employee, real estate broker Paul Dionne, learned that the defendants had been offered $3.4 million for a group of rental housing units (the "property") located in Manchester. Based upon his knowledge of the prevailing real estate market, he thought that he could find a purchaser who would pay $4 million. He met with defendant Robert Remillard, who stated that he would be willing to sell the property for $50,000 down and the remainder of the $4 million sale price in cash at closing. Dionne agreed to list the property as an "open listing" for a contracted-for commission of $200,000 on a $4 million sale. Remillard signed a listing agreement on these terms on May 21, 1985.

Dionne showed the property to a group of individuals from Massachusetts who then submitted a proposed purchase and sale agreement for the full $4 million, but with different financing terms than those proposed by the seller. The purchasers propose that $2.8 million be financed through a first mortgage with a bank, $300,000 be paid in cash at closing, and the remaining $900,000 be financed through a second mortgage to be held by the sellers. Remillard rejected the proposed purchase and sale agreement, insisting upon documents prepared by his own attorney, William Tucker. The purchase and sale agreement prepared by Tucker (the "Tucker contract") incorporated the financing method proposed by the prospective purchasers. These documents were presented to the prospective purchasers who rejected them and bowed out of the deal. Another interested purchaser, Donald Jsirandanis, made an offer that did not conform to the Tucker contract. Remillard rejected the offer. Jsirandanis twice met with Remillard and Dionne in order to attempt to negotiate a deal. As part of these negotiations, Jsirandanis offered Remillard a portfolio of properties that he owned as additional security. Remillard did not agree to any of Jsirandanis' proposals, so finally, at the second meeting, Jsirandanis' agreed to Remillard's terms with an exception: he wanted to change the Tucker contract financing slightly to allow for a $3 million first mortgage and for only $100,000 to be paid in cash. Remillard would finance $900,000 through a second mortgage on the property. Remillard agreed to this change. Jsirandanis did not withdraw his offer of additional security although Remillard never stated that the additional security was necessary for the deal as it was then structured. Remillard and Jsirandanis also agreed on an interest rate for the second mortgage of ten percent for the first six months and twelve percent thereafter. Jsirandanis stated that he wanted to have his attorney approve the contract before he signed it. At the end of the meeting, Jsirandanis and Remillard shook hands and "talked about the finality of finally having a deal." Immediately after the meeting, Jsirandanis celebrated with his secretary because he felt that the deal was done--that the parties had agreed on everything. Jsirandanis put his attorney on notice to expect documents from Remillard's attorney, but they were never provided, despite repeated attempts to contact Remillard's attorney.

While Jsirandanis awaited the arrival of the documents, he met once more with Remillard, who provided him with rent rolls for the property and other information. Remillard also agreed to help Jsirandanis after the closing to manage the property for a short time. Remillard suggested that they postpone the sale of the property until the following spring so that Jsirandanis would not have to pay for heat over the winter, and so that Remillard would not have to pay a real estate broker's commission. Jsirandanis made this proposal known to the Blais agency; Joan Blais then sent an attorney's demand letter to Remillard's attorney stating that they had supplied a ready, willing, and able purchaser for the property and were entitled to a substantial commission. The instant litigation ensued.

A real estate broker is entitled to a commission if the broker procures a buyer who is ready, willing, and able to purchase the property to be sold upon the terms proposed by or acceptable to the seller. Bell v. Warren Dev. Corp., 114 N.H. 267, 268, 319 A.2d 299, 300 (1974); Richardson v. Sibley, 101 N.H. 377, 379, 143 A.2d 414, 416 (1958); see Dunn v. Staples, 109 N.H. 251, 252, 248 A.2d 635, 638 (1968). The...