Bryan & Co. v. Kieckbusch
| Decision Date | 02 March 1971 |
| Docket Number | No. 10673,10673 |
| Citation | 482 P.2d 91,94 Idaho 116 |
| Parties | BRYAN AND COMPANY, Inc., a corporation, and Arthur N. Ridley, Plaintiffs-Respondents, v. T. W. KIECKBUSCH, Eugene F. Dolan and Donald Tompkins, Defendants-Appellants. |
| Court | Idaho Supreme Court |
Roberts & Poole, Boise, for defendants-appellants.
Racine, Huntley, Herzog & Olson, Pocatello, for plaintiffs-respondants.
In the late spring or early summer of 1966, defendant-appellant Kieckbusch became interested in developing a shopping center in Pocatello, Idaho when he learned that Buttrey Foods, Inc. desired to locate a store in the area. He had used the services of plaintiff-respondent Ridley, a realtor, for similar projects in the State of Montana in the past and contacted him. The two of them went to Pocatello in July of 1966 and contacted members of the real estate department of plaintiff-respondent Bryan and Company, Inc. The parties discussed the availability of certain properties in Pocatello; among them was a parcel of land owned by the City and which was known as Halliwell Baseball Park. According to the affidavit of Kieckbusch, who was acting on behalf of himself and his associates, Dolan and Tompkins, Kiechbusch stated that the following agreement was made with respondents:
'That there was an agreement that in the event that your affiant and his accociates would be successful in acquiring title to themselves of the said property, that a real estate fee would at that time be deemed earned and that the same would be payable only on start of construction of the proposed shopping center complex. * * * the actual purchase and passage of title to your affiant and associates would give rise to compensation, which was still to be agreed upon.'
The record discloses that appellants obtained at least the right to purchase the property (which may be distinguishable from 'actual purchase and passage of title') and conveyed their interest to Buttrey Foods, Inc. which now has a shopping center operating on the premises. Respondents made an unsuccessful bid on the property on behalf of appellants in October of 1966. A second successful bid was made by respondents on December 1, 1966, based on a telegram authorization from appellnat Kieckbusch. The record contains an affidavit of Pocatello City Attorney, Olson, to which exhibits are attached showing that he advised appellants of their successful bid. In reply, appellants' attorney wrote City Attorney Olson a letter on January 10, 1967 agreeing to purchase the Halliwell Baseball Park property. Subsequently, the record discloses that appellants assigned all of their 'right, title and interest' in said property to Buttrey Foods, Inc. for 'value received' on April 26, 1967. A Buttrey-Osco Shopping Center was then constructed and respondents received no commission from anyone.
On November 18, 1968, respondents filed suit to collect their commission. Appellants answered by denying all material allegations of the complaint without alleging any affirmative defenses. Thereafter, respondents filed a motion for summary judgment based on the pleadings and depositions of Schatz and Edwards, members of Bryan and Company, Inc. Appellants filed the affidavit of Kieckbusch in opposition. Respondetns then filed the affirdavits of Edwards and City Attorney Olson with supporting eshibits. The trial court granted a partial summary judgment in favor of respondents on the issue of liability and reserved for trial the amount of compensation due. At the subsequent trial the amount due was determined to be $12,600.00.
Assignment of error is made by appellant to the partial granting of respondent's motion for summary judgment. Appellants contend that there were genuine issues of material fact as to the amount of the commission, the conditions under which the commission was to be earned and whether or not there was any firm contractual agreement for payment of any compensation to respondents.
Respondent answers that there was a trial on the issue of fact of the amount of compensation, and that appellant himself (Kieckbusch) admitted by affidavit that there was a firm agreement. As to the conditions under which the commission was to be earned, respondent contends that these conditions were under appellants' exclusive control, and that after appellants' bid was accepted by the City of Pocatello, they then prevented those conditions from occurring by transferring their interest in the property to a third party (Buttrey, Inc.). In his brief and affidavit appellant Kieckbusch contends that he was not successful in obtaining title to the property because he could not obtain the necessary financing. Respondents cite authority that under such circumstances the issue of conditions of performance of the agreement is immaterial. We agree with respondent that the district court properly granted the motion for summary judgment. Summary judgment should be granted where there are no genuine issues of material fact remaining to be resolved. I.R.C.P. 56(c); Collord v. Cooley, 92 Idaho 789, 451 P.2d 535 (1969); Stewart v. Arrington Construction Co., 92 Idaho 526, 446 P.2d 895 (1968); Matthews v. New York Life Insurance Co., 92 Idaho 372, 443 P.2d 465 (1968); E. S. Harper Co. v. General Insurance Co. of America, 91 Idaho 767, 430 P.2d 658 (1967). Appellants allege that genuine issues of material fact remained for the jury upon the principal ground that they were not obligated by the contract to pay the broker's commission unless they took title to the property. They further allege that their full performance was rendered impossible because they could not secure the necessary financing. Neither allegation, however, appears in the defendants' answer. Rather, they were raised for the first time in Mr. Kieckbush's affidavit resisting plaintiffs' motion for summary judgmnt.
Appellants' contention that they must take title to the property before any obligation to pay the commission arose is, at this point, inapposite. I.R.C.P. 9(c) requires that a denial of the performance or occurrence of conditions precedent shall be specifically pleaded. Generally, if one does not specifically deny the satisfaction of conditions precedent in his answer, such defense is not put in issue. Coral Gables, Inc. v. Skehan, D.C., 47 F.Supp. 1 (1942); Temperato v. Rainbolt, D.C., 22 F.R.D. 57 (1958); Reynolds-Fitzgerald, Inc. v. Journal Pub. Co., D.C., 15 F.R.D. 403 (1954). Cf. McMinn v. Holley, 86 Idaho 186, 384 P.2d 229 (1963).
Appellants' contention that they were not able to complete the purchase because they could not secure financing amounts to a defense of...
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...material fact and that the moving party is entitled to a judgment as a matter of law.' I.R.C.P. Rule 56(c). E.g. Bryan and Co. v. Kieckbusch, 94 Idaho 116, 482 P.2d 91 (1971). In determining whether any issue of material fact is in dispute, it is well settled that the facts should be libera......
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