DaLee Realty, Inc. v. Kuhl, 43254

• Decision Date: 22 May 1981
• Docket Number: No. 43254,43254
• Parties: DaLEE REALTY, INC., a corporation, Appellant and Cross-Appellee, v. Donald KUHL and Vayle Kuhl, husband and wife, Appellees and Cross-Appellants.
• Court: Nebraska Supreme Court

Page 891

305 N.W.2d 891

209 Neb. 6

DaLEE REALTY, INC., a corporation, Appellant and Cross-Appellee, v. Donald KUHL and Vayle Kuhl, husband and wife, Appellees and Cross-Appellants.

No. 43254.

Supreme Court of Nebraska.

May 22, 1981.

Syllabus by the Court

1. Brokers: Options to Buy or Sell. A broker is not entitled to a commission from a seller for producing a ready, willing, and able buyer, where the buyer is only willing to execute an option and the seller does not prevent exercise of the option.

2. Contracts: Options to Buy or Sell. The nature of a contract as an option or obligation to purchase is to be determined not by the name which the parties have given it but by the nature of the obligation which it imposes.

3. Options to Buy or Sell. An option is a binding offer to sell or buy, but is not a purchase agreement.

4. Contracts. Where a contract is on a regular printed form prepared by one party, an ambiguous provision in the printed portion should be construed most strictly against such party.

Warren L. Reimer, of Ptak, Ptak & Reimer, Norfolk, for appellant and cross-appellee.

Olds, Swarts & Ensz, Wayne, for appellees and cross-appellants.

Heard before KRIVOSHA, C. J., WHITE and HASTINGS, JJ., and HENDRIX and KNAPP, District Judges.

HENDRIX, District Judge.

This is an action by the plaintiff, DaLee Realty, Inc., a real estate broker, to recover commission upon a listing contract between plaintiff and defendants, Donald Kuhl and Vayle Kuhl, the owners of land, buildings, fixtures, bees, and equipment which were for sale. A jury was waived, and the case tried to the court on stipulated facts. The district judge found against the plaintiff for commission, but for the plaintiff for expenses in the sum of $2,064.24. The plaintiff appealed and the defendants cross-appealed. We affirm the denial of commission and reverse the allowance of expenses.

The listing contract is entitled "Farm Listing Contract," is a form contract, and states that it was approved by the Nebraska Realtors Association in 1972. It contains two printed provisions particularly important to the resolution of the controversy. The first of these to appear provides for the payment of a commission of 7 percent of the sale price upon the happening of any of a number of certain events, among them one stating, "If a sale is made, or a purchaser found, who is ready, willing and able to purchase the property ...." The second of these provides for the payment of expenses incurred by the agent on conditions stating, "If a Purchase Agreement is entered into and subsequent thereto, any earnest money payment is returned in full to the prospective purchaser for any reason ...."

After the parties entered into the listing contract, plaintiff secured a prospective buyer by the name of Lyle DeBrunner. Mr. DeBrunner's attorney prepared a document entitled "Purchase Agreement," which was executed by defendants and Mr. DeBrunner on March 7, 1978. The agreement contained complete and full terms of purchase for the sum of $265,000. However, one of the provisions called for a downpayment of $1,000 in escrow by the prospective purchaser, and further stated: "If Buyer does not accept the terms of this contract on or before March 15, 1978, the earnest money shall be returned to Buyer and this contract shall be null and void." On March 15, 1978, Lyle DeBrunner notified the escrow agent and one of the defendants that he was not exercising his right to purchase. The transaction was never consummated.

Both the listing contract and the purchase agreement recited that among the items for sale were 1,800 colonies (of bees). The parties stipulated that if Lyle DeBrunner were called to testify, he would testify that he did not exercise his right to purchase because he counted 860 beehives in Texas. It was further stipulated that if defendants were called to testify, they would testify that the maximum number of beehives which the defendant Donald Kuhl had would be 1,400. It was further stipulated that the plaintiff's expenses incurred relative to the listing contract were $2,064.24.

Under the agreement between Lyle DeBrunner and the defendants, Lyle DeBrunner had the option to make the purchase. He had no obligation to complete the transaction until or unless he exercised his option by acceptance of the contract on or before March 15, 1978. This he did not do, and in fact notified the defendants that he was not accepting the contract. On March 7, 1978, Mr. DeBrunner was only ready,...