Central Idaho Agency, Inc. v. Turner, No. 10146

• Court: Idaho Supreme Court
• Writing for the Court: TAYLOR; SMITH
• Citation: 92 Idaho 306,442 P.2d 442
• Docket Number: No. 10146
• Decision Date: 21 June 1968
• Parties: CENTRAL IDAHO AGENCY, INC., Plaintiff-Respondent, v. Clara TURNER, Defendant-Appellant.

Page 442

442 P.2d 442 92 Idaho 306 CENTRAL IDAHO AGENCY, INC., Plaintiff-Respondent,
v.
Clara TURNER, Defendant-Appellant. No. 10146. Supreme Court of Idaho. June 21, 1968.

[92 Idaho 308]

Page 444

Madden, Randall, Bengtson & Peterson, Lewistion, for appellant.

Blake, Givens & Feeney, Lewiston, for appellee.

TAYLOR, Justice.

January 19, 1965, plaintiff (respondent) and defendant (appellant) entered into a real estate broker's employment contract whereby plaintiff was given the exclusive authority to find a buyer for defendant's farm property during the period extending from the date of the contract to and including December 1, 1965. The contract was executed on a printed form provided by plaintiff. Blanks therein were filled in by handwriting. The material portions of the agreement are as follows: (The handwritten portions are underlined.)

'Description: App. 2120 acres, known as Clara Turner farm or ranch described as Sec 21, 27, 28, 29, 32, 33, 34 * T. 33 N/R 2 E of B M, County of Lewis, State of Idaho, for better description see owner's title deed on record, now made a part hereof. * * * Selling price, free of encumbrances: $410,000--; Terms: 100,000 down 20 yrs at 5% Int. * * *

'To: Central Idaho Agency, Inc. Cottonwood, Idaho, Jan 19, 1965

'FOR VALUE RECEIVED, you hereby are employed to sell or exchange the property described hereon at the selling price and on the terms noted. * * * In the event that you * * * shall find a buyer ready and willing to enter into a deal for said price and terms, or such other terms and price as I may accept, or that during your employment you place me in contact with a buyer to or through whom at any time within 180 days after the termination of said employment I may sell or convey said property, I hereby agree to pay you in cash for your services a commission equal in amount to 5% of said selling price. * * * taxes levied on said property for the current tax year * * * are to be prorated between the seller and buyer. * * * This agreement expires at midnight on Dec. 1, 1965, but I further allow you a reasonable time thereafter to close any deal on which earnest money is then deposited. Any sale, exchange or conveyance of the property or any part thereof by me prior to the said expiration date or through another broker or third person without your assistance shall be construed as a withdrawal of your authority to sell the above described property. In case of suit or action on this contract, I agree to pay such additional sum as the court may adjudge reasonable as plaintiff's attorneys fees. * * *

'THIS LISTING IS AN EXCLUSIVE LISTING and you hereby are granted the absolute, sole and exclusive right to sell or exchange the said desscribed property. In the event of any sale, by me or any other person, exchange or conveyance, of said property, or any part thereof, during the term of your employment, or in case I withdraw the authority hereby given prior to said expiration date, I agree to pay you the said commission just the sme as if a sale had actually been consummated by you.

'I HEREBY CERTIFY THAT I have received a carbon copy OF THIS CONTRACT. * * *

'Possession Imediately (sic) after Harvest. * * *'

[92 Idaho 309]

Page 445

In its search for a buyer, plaintiff eventually contacted Donald, LaVerne and John Herndon. Negotiations ensued between the plaintiff, defendant, the Herndons, and the respective attorneys for defendant and the Herndons. However, no contract of sale resulted.

Plaintiff brought this action in March, 1966, to recover the commission and attorney's fees provided for by the contract. Both parties moved for summary judgment. Upon consideration of the motions, affidavits, depositions, pleadings and attached exhigits, the court denied defendant's motion, granted plaintiff's motion and entered judgment in favor of the plaintiff and against the defendant in the sum of $23,464.06. Defendant brought this appeal from judgment.

Defendant's first assignment of error is that the court erred in granting plaintiff's motion for summary judgment. In our consideration of this assignment we view the facts in the light most favorable to defendant. IRCP Rule 56(c); Southern v. Southern, Idaho, 438 P.2d 925 (1968); Day v. Mortgage Insurance Corporation, 91 Idaho 605, 428 P.2d 524 (1967); Otts v. Brough, 90 Idaho 124, 409 P.2d 95 (1965); Steele v. Nagel, 89 Idaho 522, 406 P.2d 805 (1965); Jack v. Fillmore, 85 Idaho 36, 375 P.2d 321 (1962). The presence of unresolved material issues of fact precludes summary judgment. IRCP Rule 56(c); Southern v. Southern, supra; E. S. Harper Co. v. General Insurance Co. of America, 91 Idaho 767, 430 P.2d 658 (1967); Day v. Mortgage Insurance Corporation, supra; Lundy v. Hazen, 90 Idaho 323, 411 P.2d 768 (1966).

The record shows without contradiction that (a) no contract for the sale of the property was consummated within the terms of the broker's agreement; and (b) the plaintiff spent considerable time, money and effort to procure a buyer. Therefore, pursuant to the terms of the contract, plaintiff would be entitled to summary judgment only if one of the following state of facts was conclusively established by the record; first, that plaintiff produced a buyer ready, willing and able to purchase the property under the terms authorized by the agreement, or under other terms acceptable to the defendant; Rogers v. Hendrix, 92 Idaho 141, 438 P.2d 653 (1968); Frye v. Levanger, 76 Idaho 252, ...