Chamberlain v. Porter

Decision Date26 July 1989
Citation562 A.2d 675
PartiesShirley CHAMBERLAIN v. Jean PORTER.
CourtMaine Supreme Court

Catherine B. Johnson (orally), Law office of John J. Lynch, Damariscotta, for plaintiff.

John H. Montgomery (orally), Jensen, Baird, Gardner & Henry, Portland, for defendant.

Before McKUSICK, C.J., and WATHEN, GLASSMAN, CLIFFORD, HORNBY and COLLINS, JJ.

GLASSMAN, Justice.

Plaintiff Shirley Chamberlain appeals from a judgment of the Superior Court (Lincoln County; Cole, J.) affirming the summary judgment granted by the District Court (Wiscasset; MacNichol, J.) in favor of the defendant Jean Porter. Porter cross-appeals the denial of a motion for attorney fees and costs pursuant to M.R.Civ.P. 11. We affirm the judgment.

The facts relevant to this appeal are undisputed. Chamberlain, a real estate broker, entered into a written exclusive right of sale listing agreement with Porter to find a "purchaser ... who is ready, willing and able to purchase" property owned by Porter in North Edgecomb. In exchange, Porter agreed to pay Chamberlain a commission of six percent of the selling price "from the proceeds at closing."

A few months after signing the listing agreement, Chamberlain found a buyer for the property, and a contract for the purchase of the premises was completed. A title search, however, revealed nine defects in Porter's title to the property, some of which prevented the closing of the sale.

By her complaint against Porter, Chamberlain sought the commission she claimed was due from Porter for producing ready, able and willing buyers for the North Edgecomb property. Both parties filed motions for summary judgment, and Porter also filed a motion for attorney fees and costs pursuant to M.R.Civ.P. 11, contending that Chamberlain misrepresented a critical fact to the court in an affidavit. The trial court denied Chamberlain's motion for a summary judgment; granted Porter's motion for a summary judgment; and denied Porter's motion for attorney fees and costs. The Superior Court affirmed the decision of the trial court, and this appeal and cross-appeal followed.

Chamberlain contends on appeal that the trial court erred in finding that she was not entitled to a commission when she produced ready, able and willing buyers to purchase the North Edgecomb property. She argues that her commission was not conditioned on the closing of the sale but was earned at the time she found buyers who were willing to meet the terms and conditions of sale proposed by Porter.

When, as here, the Superior Court acts as an intermediate appellate tribunal, we directly review the judgment of the District Court to determine whether it contains any error of law that would affect its validity. Cole v. Cole, 561 A.2d 1018 (Me.1989); Homstead Enterprises v. Johnson Products, Inc., 540 A.2d 471, 472 (Me.1988); Town of Ogunquit v. Brazer, 489 A.2d 505, 506 (Me.1985).

At the outset, we note that when we review the trial court's grant of a motion for summary judgment, we examine " 'the record to determine whether it supports the trial court's conclusion that there was no genuine issue as to any material fact, and that [Porter was] entitled to a judgment as a matter of law.' " Forbes v. Osteopathic Hosp. of Maine, 552 A.2d 16, 17 (Me.1988) (quoting Lidstone v. Green, 469 A.2d 843, 845 (Me.1983)). We view " 'the evidence in a light most favorable to the party against whom the motion has been granted and accord that party the full benefit of all favorable inferences that may be drawn from the evidence.' " Id.

The duty of a broker to find a purchaser is generally discharged by producing a customer who is ready, willing and able to meet the exact terms and conditions of sale proposed by the seller. First of Maine Commodities v. Dube, 534 A.2d 1298, 1300 (Me.1987); Bowley v. Paine, 291 A.2d 712, 714 (Me.1972); S. Williston, A Treatise on the Law of Contracts § 1287, at 957 (1967). Although the parties' objective is clearly the completion of the sale, the completed transaction is not a condition precedent to the earning of a commission. Labbe v. Cyr, 150 Me. 342, 348, 111 A.2d 330 (1954).

This general rule, however, may be modified by the parties to the listing agreement. The contract between the parties, for example, may make the commission conditional on an actual sale. Labbe, 150 Me. at 348, 111 A.2d 330; 7 R. Powell & P. Rohan, Powell on Real Property § 938.17 (1989); S. Williston, supra, at 961. " 'A broker employed to sell, as distinguished from a broker employed to find a purchaser, is not entitled to compensation until he effects a sale, or procures from his customer a binding contract of sale.' " Labbe, 150 Me. at 348, 111 A.2d 330 (quoting Damers v. Trident Fisheries Co., 119 Me. 343, 350, 111 A. 418 (1920)).

Here, the contract between Porter and Chamberlain provided that the commission was to be paid "from the proceeds at closing." By inserting this provision, the parties contracted to change the general rule that a broker is entitled to a commission on producing a ready, willing and able buyer. See Dube, 534 A.2d at 1300. The parties created a condition precedent to the receipt of the commission--the consummated sale had to occur before the broker could be paid. See Rodgers v. Baughman, 382 N.W.2d 714, 717 (Iowa Ct.App.1985) (listing agreement that provided for payment of commissions "out of the first money received on the sale" required a sale before broker would be entitled to a commission); Storch v. Ricker, 57 Md.App. 683, 471 A.2d 1079 (1984) (provision in contract tying broker's commission to settlement agreement takes contract out of general rule); E. Farnsworth, Contracts § 8.4 at 555 (1982) (courts...

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8 cases
  • Garcia v. Mainegeneral Health
    • United States
    • U.S. District Court — District of Maine
    • November 20, 2018
    ...1090, 1093 (Me. 2002) ("These provisions are condition precedents to the existence of a binding contract."), with Chamberlain v. Porter, 562 A.2d 675, 676-77 (Me. 1989) (sale of property was condition precedent to seller's duty to pay broker's commission). The Plaintiff would be correct tha......
  • Dancoes v. Marean
    • United States
    • Maine Superior Court
    • December 15, 2017
    ...have contracted to modify the general rule by creating a condition precedent to the receipt of the broker's commission. See Chamberlain, 562 A.2d at 677 (holding pursuant to the parties listing agreement, an actual sale of the property was a "condition precedent to the receipt of the commis......
  • Jobar v. Perking Old Chicago, Inc., CUM CV-01-007
    • United States
    • Maine Superior Court
    • December 30, 2001
    ...by producing a customer who is ready, willing and able to meet the exact terms and conditions of [the transaction]. Chamberlain v. Porter, 562 A.2d 675, 677 (Me. 1989); S. WILLISTON, A TREATISE ON THE LAW OF CONTRACTS § 1287, 957 (1968). This rule, however, may be modified by the parties to......
  • Rivers v. Amato
    • United States
    • Maine Supreme Court
    • July 9, 2003
    ...Me. 342, 348, 111 A.2d 330, 333 (1954). [¶ 9] A listing contract may make a commission contingent on an actual sale. Chamberlain v. Porter, 562 A.2d 675, 677 (Me.1989); Labbe, 150 Me. at 348,111 A.2d at 333. The listing contract states that if the buyer makes an offer after the initial six-......
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