Currier v. Letourneau

• Decision Date: 05 April 1977
• Docket Number: No. 265-75,265-75
• Citation: 135 Vt. 196,373 A.2d 521
• Court: Vermont Supreme Court
• Parties: David CURRIER d/b/a Currier Real Estate and Joanne M. Day v. Philip LETOURNEAU and Barbara Letourneau.

Page 521

373 A.2d 521

135 Vt. 196

David CURRIER d/b/a Currier Real Estate and Joanne M. Day v. Philip LETOURNEAU and Barbara Letourneau.

No. 265-75.

Supreme Court of Vermont.

April 5, 1977.

Rexford, Kilmartin & Chimileski, Newport, for plaintiffs.

May & Davies, Barton, for defendants.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

HILL, Justice.

The present action was initiated in Orleans Superior Court by David Currier, a licensed real estate broker, and Joanne Day, a prospective purchaser, against the appellants Philip and Barbara Letourneau, the owners of land in Holland, Vermont. Currier and Day contended in their complaint that the Letourneaus breached a contract for the sale of real property at an agreed price of $33,000.00. Accordingly, Currier sought to recover his broker's commission, and Day sought to recover her damages caused by the breach. The Letourneaus answered, denying any breach on their part and counterclaimed, alleging that Currier had violated his fiduciary duties as an agent, that Day had trespassed on their property, and that Currier and Day had fraudulently conspired against them in seeking to purchase their property for less than its fair market value.

The case was tried by jury. Following several days of hearings, the jury returned a verdict for the plaintiff Currier in the amount of $3,000.00, and a verdict for the plaintiff Day in the amount of $750.00. Defendants' counterclaim was denied. Judgments to this effect were ordered entered by the court. Defendants have taken their appeal from the judgments rendered below.

The record on appeal reveals that prior to March 13, 1973, the plaintiff Day came to Vermont in hopes of establishing a home here. Ms. Day had previously lived in Vermont and was well acquainted with Mr. Currier and his wife. Upon her arrival, Ms. Day took up residence with the Curriers and asked Mr. Currier if he could locate some suitable property for her to purchase. Currier showed Ms. Day three or four locations, but none aroused her interest. Currier also contacted the Letourneaus and informed them that he might be able to find a buyer for their property. Currier prepared an open non-exclusive listing agreement setting the purchase price at $35,000.00 and his commission at $3,000.00. This agreement was signed by Philip Letourneau, but was never duly executed by his wife Barbara. Shortly after procuring this agreement, Currier and Ms. Day visited the property. Ms. Day was pleased with the location and made an offer, through Currier, to buy the property. This first offer was rejected. After some discussion between Currier and the Letourneaus, a price of $33,000.00 was agreed to by all concerned. Currier drafted a deposit receipt and sales agreement which was signed by all the parties to the transaction. The sales contract provided for a closing on April 15, 1973. This date, however, was subsequently extended by mutual consent to April 30. By the scheduled closing date, Day had obtained all the necessary financing and was prepared to carry through on the purchase even though she had decided to leave Vermont and had asked Currier if he could re-sell the property for her. This contingency never came to pass since the Letourneaus failed to appear at the appointed location for the closing.

Subsequent to these events, the plaintiffs have maintained that the defendants remained obligated to convey pursuant to the contract. The defendants have steadfastly held that their duty under the agreement had lapsed because it was understood that the deal had to culminate before the effective date of the Vermont Land Gains Tax. The instant appeal comes before us as a result of this stalemate.

The appellants have briefed several questions for our review. It seems to us that our resolution of this appeal makes it unnecessary to discuss each point seriatim. For this reason, the opinion will proceed in terms of a general discussion with consideration of particular points that are not thus sufficiently dealt with. With this proviso, then, it appears that three grounds of error are alleged: (1) Whether the trial court erred by failing to grant the appellants' motion for a directed verdict; (2) Whether the trial court erred by admitting into evidence, over appellants' objections, certain testimony; and (3) Whether the trial court erred in its instructions to the jury.

I.

It is a basic rule of appellate review that when passing upon the propriety of a denial of a directed verdict this Court will view the evidence in the light most beneficial to the non-moving party, exclusive of any modifying evidence. Lattrell v. Swain, 127 Vt. 33, 239 A.2d 195 (1968). In so doing we are mindful of the fact that the weight of the evidence, the credibility of the witnesses, and the persuasive effect of their testimony are best left to the determination of the jury and are not to be reviewed by this Court. Greenberg v. Giddings, 127 Vt. 242, 246 A.2d 832 (1968); Anderson v. Knapp, 126 Vt. 129, 225 A.2d 72 (1966).

As far as the motion for a directed verdict concerns the claim for relief brought by Mr. Currier, we are of the opinion, on the basis of the uncontroverted evidence, that the trial court should have granted appellants' motion. Here, there is no dispute that the listing agreement between the parties was signed only by Mr. Letourneau, and provided that Currier receive a commission of $3,000.00, or ten per cent of the purchase price. Rule 16(2) of the Vermont Real Estate Commission, promulgated by the Commission pursuant to its statutory authorization, provides that:

Every listing agreement shall be in writing. It shall contain a clear and definite statement of the commission to be allowed the agent. It shall contain a clear and definite provision for its termination, properly identify the property, and contain all the terms and conditions of the sale and the termination date. It shall show the signature of all parties concerned. . . . All listings shall show the commission to be paid in percentage figures.

In the case of Green Mountain Realty, Inc. v. Fish, 133 Vt. 296, 299, 336 A.2d 187, 189 (1975), this Court ruled that:

To recover a commission the burden was on the plaintiff to establish that the defendants had entered into a contract with it to sell their property and receive a commission . . .. The only legitimate evidence of such an agreement is, and can only be, by a listing agreement containing all the ingredients expressly mandated by law under the statute.

See also Selected Listings Co. v. Humiston, Vt., 370 A.2d 1297 (1977). Clearly, there is no room for dispute that the listing agreement concerned here is fatally defective in that it lacks Mrs. Letourneau's signature and shows Currier's commission in a flat dollar amount. The law on this question is unequivocal; a duly executed listing agreement is the sole vehicle upon which a broker can predicate recovery of any commission he alleges is owed him. Given the facts of this case and the state of the law, it was error for the trial court to refuse to direct a verdict in favor of the appellants in respect to Currier's commission.

II.

In connection with their motion for a directed verdict, appellants have argued that Currier, while ostensibly their agent, was throughout the transaction representing the plaintiff Day with her consent. Additionally, appellants allege that Currier and Day conspired to obtain the subject property fraudulently for less than its fair market value. On the state of the evidence, the Letourneaus contend that, as a matter of law, Day is prevented from recovering any damages founded on the wrongfully procured contract of sale.

As noted earlier, in reviewing denial of a motion for a directed verdict the record is to be taken in the light most favorable to the prevailing party. The motion is viewed as properly denied when there is credible evidence tending to fairly and reasonably support the verdict. Norton & Lamphere Construction Co. v. Blow & Cote, Inc., 123 Vt. 130, 131, 183 A.2d 230 (1962).

The testimony of both plaintiffs demonstrates that neither sought to engage the other in any conduct inimical to the appellants' interests. It does appear that some time after the contract was executed Ms. Day did ask Currier if he could locate a possible buyer for the property. However, it cannot be said that Currier violated his fiduciary duties because he agreed with Ms. Day, before the deal between her and the appellants was entirely concluded, to help her dispose of the property once she acquired ownership. 12 Am.Jur.2d Brokers § 88. Fraud is never presumed, but in each instance must affirmatively be shown. Union Twist Drill Co. v. Harvey, 113 Vt. 493, 504, 37 A.2d 389 (1944). The question was one properly left to the jury. Their verdict as to appellants' liability to Day is amply supported by the record and will not be disturbed.

III.

Appellants would also ask this Court to reverse the judgment entered below on the basis of their contention that the trial court erred by admitting certain alleged irrelevant and immaterial testimony.

Specifically, appellants point to three occasions during the trial, when, in their opinion, the lower court erroneously permitted the appellees to elicit prejudicial and irrelevant testimony. The first such instance concerns testimony received from David Currier and one Thomas Adams involving Mr. Adams' interest, as a potential buyer, in the subject property. The evidence adduced from these witnesses, though in conflict on some points, indicates that Adams had dealt with both Currier and the Letourneaus, and had actively sought to purchase the real estate here in question. It is axiomatic that in order to be relevant, offered proof must support a rational inference related to an essential issue in the litigation. In re Wells' Will, 95 Vt. 16, 25, 113 A. 822 (1921). Throughout the present controversy, appellants have maintained that they did not...