Central Idaho Agency, Inc. v. Turner

• Decision Date: 21 June 1968
• Docket Number: No. 10146,10146
• Citation: Central Idaho Agency, Inc. v. Turner, 442 P.2d 442, 92 Idaho 306 (Idaho 1968)
• Parties: CENTRAL IDAHO AGENCY, INC., Plaintiff-Respondent, v. Clara TURNER, Defendant-Appellant.
• Court: Idaho Supreme Court

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.

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. * * *' 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, 281 P.2d 134 (1955); or, second, that defendant wrongfully withdrew plaintiff's authority to sell under the exclusive listing agreement prior to its expiration date, regardless of whether a buyer, ready, willing and able to buy under the terms of the agreement, or other terms acceptable to the defendant, was procured by plaintiff. Crane v. McCormick,92 Cal. 176, 28 P. 222 (1891); see Tetrick v. Sloan, 170 Cal.App.2d 540, 339 P.2d 613 (1959); c. f. Kimmell v. Skelly, 130 Cal. 555, 62 P. 1067 (1900).

Treated in the light most favorable to defendant, the record does not show that either of the foregoing propositions was conclusively established. The record tends to wupport the conclusion that the Herndons were willing to purchase the property under the terms of the listing agreement. However, defendant contends that some of the terms in the agreement, particularly those for time payments over a period of 20 years, and the rate of interest, were inserted in the agreement by plaintiff's agent subsequently to the signing of the agreement by defendant, in contravention of the clause in the agreement which provides:

'Also I authorize you, at any time, to fill in and complete all or any part of the 'Information Data' below, except financial details.'

Defendant also contended that the added terms were contrary to her will. Terms relating to financial details both avove and below defendant's dignature, were handwritten and not a part of the printed form. Thus, an issue arises as to whether the terms of the brokerage contract to which Herndons agreed were the same terms that were a part of the agreement when defendant signed it.

The record shows that defendant's attorney and the Herndons, acting through their attorney, had reached an agreement containing 'other terms.' However, the record does not show that defendant's attorney was 'authoized by writing' to act as defendant's agent in making an agreement for the sale of the property, as required by the statute of frauds (I.C. § 9-503) and the record is conclusive that defendant never reached an agreement with the Herndons. Thus, it cannot be said that defendant agreed to 'other terms.'

Concerning withdrawal of plaintiff's authority, defendant by her own admission had decided, prior to the expiration of the brokerage agreement, that she did not wish to sell the farm. However, it does not conclusively appear that defendant communicated any withdrawal of authority to the plaintiff. It, therefore, remains with the trier of facts to determine, upon evidence, whether defendant by words or conduct effectively withdrew plaintiff's authority prior to the expiration of the agreement. Furthermore, if it be found that defendant did thus withdraw plaintiff's authority, the issue as to whether such withdrawal was wrongful must also be determined in view of defendant's claim that the plaintiff wrongfully added terms to the agreement.

In support of the summary judgment, plaintiff urges that defendant failed to answer its motion for summary judgment 'in detail as specific as that of the moving papers,' IRCP Rule 56(e). The federal Advisory Committee on Rules in discussing the like federal rule, and particularly referring to the last two sentences added by was of amendment said:

'Nor is the amendment designed to affect the ordinary standards applicable to the summary judgment motion. So, for example: Where an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate. Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.'

The totality of the motions, affidavits, depositions, pleadings and attached...