Bradley v. Westerfield
| Decision Date | 09 June 1965 |
| Docket Number | CA-CIV |
| Citation | 402 P.2d 577,1 Ariz.App. 319 |
| Parties | Elizabeth K. BRADLEY, d/b/a Rio Rita Bar, Appellant, v. Hugh A. WESTERFIELD, d/b/a Westerfield Realty, Appellee. * 254. |
| Court | Arizona Court of Appeals |
Tannenbaum & Tannenbaum, by Kenneth M. Tannenbaum, Tucson, for appellant.
Price & Tinney, by John Price, Tucson, for appellee.
Hugh A. Westerfield, the plaintiff below, filed suit in Superior Court against Elizabeth K. Bradley, defendant below, to recover a real estate commission allegedly earned by the plaintiff. The case was tried to the court sitting without a jury, judgment was rendered for the plaintiff and defendant appeals.
The sequence of events which gave rise to this lawsuit is as follows: Defendant entered into a business listing agreement with the plaintiff authorizing the plaintiff to procure a purchaser for defendant's business, the Rio Rita Bar. The listing described the business as a bar with a full liquor license. The agreement, signed by the defendant-owner stated:
(Emphasis supplied)
The listing set forth information regarding mortgage encumbrances, namely, first and second mortgages of substantial amounts, requiring monthly payments of $500 and $150 respectively. Within the 90-day period, plaintiff's saleswoman produced a prospective buyer who entered into an agreement with the defendant for the purchase of the business, together with the furniture, fixtures, equipment and the No. 6 Liquor License. The buyer agreed to assume the obligations of the two mortgages, and both parties agreed that the sale was contingent upon procuring the consent, if necessary, of the first chattel mortgage holder. Consent of the second chattel mortgagee was not made a condition of the sale.
A portion of the agreement germane to this appeal provided:
'This agreement is contingent upon the approval of a person to person transfer from seller to buyers of the above described Series No. 6 Liquor license, and in the event that such approval is not obtained from the Superintendent of Liquor Licenses and Control of the State of Arizona, then this agreement shall be null and void and all sums paid hereunder shall be returned to buyers.'
Approximately ten days later, the buyer took possession of the business and the escrow agent's closing statement was rendered to her. Within this same period, the buyer's application for a person to person transfer of the liquor license was filed with the Superintendent of Liquor Licenses and Control. The application was approved by the City Council of Tucson and a copy of the approval forwarded to the Superintendent. The escrow agent issued a check for the realty commission to the plaintiff but subsequently directed the bank to stop payment of same for the reason that the second chattel mortgagee, when apprised of the sale, asserted his rights by virtue of a restriction in his favor on the transfer of the liquor license. No transfer of the license could be effectuated without his consent, and he had not assented to the transfer.
This caused the buyer to declare the contract breached by the seller, the application for transfer of the liquor license was withdrawn, and the contract was rescinded by mutual consent. At the pretrial conference, the parties to this action stipulated as follows:
1. The reason for failure to consummate the sale is that the second mortgage holder refused to consent to the sale, as was his privilege under his mortgage.
2. The only reason that the liquor license was not transferred to the buyer under the terms of said contract by the Superintendent of Liquor Licenses and Control was that the second mortgage holder did not consent to such sale.
3. In the event that it be determined that the Superintendent of Liquor Licenses and Control did not approve this person to person transfer it is for the same reason, namely, the failure of the second mortgagee to approve said transfer.
The sole question to be resolved in this appeal is whether the plaintiff was entitled to a commission despite the fact that the sale was not consummated.
Generally speaking, a real estate broker has earned his commission when he has brought to the vendor a purchaser who is ready, willing and able to buy the property on the terms...
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