Bryant v. Strong, 382-80
| Decision Date | 20 May 1982 |
| Docket Number | No. 382-80,382-80 |
| Citation | 141 Vt. 244,448 A.2d 142 |
| Parties | Thomas W. BRYANT d/b/a Bryant Real Estate v. Kenneth M. STRONG and Louisa B. Strong. |
| Court | Vermont Supreme Court |
Harold B. Stevens, Stowe, for plaintiff.
Richard C. Blum and Thomas J. Amidon of Blum Associates, Burlington, for defendants.
Before BARNEY, C. J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ. BARNEY, Chief Justice.
The claims and cross-claims raised in this appeal concern a real estate broker's right to collect a fee for his efforts in arranging a sale. That sale ultimately fell through when the sellers, who had listed their home with him under a nonexclusive listing agreement, sold it instead to their tenants, who held a right of first refusal.
On July 20, 1976, the plaintiff, a licensed realtor, and the defendants, owners and would-be sellers of a residential property, entered into a nonexclusive (open listing) agreement regarding the property for a one year period. The pertinent terms of the agreement were that the owners would pay the broker a six percent commission on the amount of the sale price, except that this commission would not be earned if the property was sold by the owners to anyone not secured by the realtor. The agreement was completed on a form drafted and furnished by the plaintiff broker.
During the year that the agreement was in effect, the owners rented their home to a party who requested, and was orally granted, a right of first refusal to purchase the property on the same terms and conditions as the owners might agree with a would-be purchaser. 1 The existence of this right first came to the realtor's attention when he was showing the property to the potential purchasers, and sometime thereafter it was communicated to the purchasers as well. The findings affirmatively show that all of the parties were aware of the existence of this right at all relevant times.
With full knowledge that their ability to purchase the property was contingent on the tenant's decision not to buy, the prospective purchasers made an offer on the property and tendered a substantial deposit to the realtor. After some negotiation the realtor, the owners and the prospective purchasers entered into a Deposit Receipt and Sales Agreement, again on a standard form provided by the realtor, in which the owners once again agreed to pay the realtor a commission "as per [the] listing agreement," and in which an additional term provided that, in the event the sellers and the purchasers failed to complete the sale as provided for by the agreement, the realtor would be entitled to receive one-half of the deposit. The agreement further stated that if legal action was instituted to collect any or all of the commission, the seller would pay reasonable attorney's fees as determined by the court. No mention was made of the tenant's right of first refusal as a precondition to the sale, anywhere in the agreement.
After the Deposit Receipt and Sales Agreement was signed, the realtor contacted the tenant to see what her intention was. She was ambivalent, and over the next week looked at a number of other area properties in an attempt to reach a decision. Some of these properties were shown her by the plaintiff, and others she looked at independently. When she at last agreed to move out if the prospective purchasers would allow her to remain as a tenant until Thanksgiving, and this request was denied, she decided to exercise the right of first refusal and purchase the property. The sale between the owners and their tenant closed with no further assistance from the plaintiff, who had returned the $6500 deposit to the potential purchasers.
The plaintiff then sued for a commission on the defendant owners' sale of the property to their tenant, later amending the claim to include attorney's fees. His position was that he had procured a ready, willing and able...
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