Dindo v. Denton

• Decision Date: 11 January 1972
• Docket Number: No. 146-70,146-70
• Citation: Dindo v. Denton, 130 Vt. 98, 287 A.2d 546 (Vt. 1972)
• Court: Vermont Supreme Court
• Parties: Howard G. DINDO v. Kenneth N. DENTON and Dorden Corporation.

Page 546

287 A.2d 546

130 Vt. 98

Howard G. DINDO v.Kenneth N. DENTON and Dorden Corporation.

No. 146-70.

Supreme Court of Vermont.

Jan. 11, 1972.

Supplemental Opinion Feb. 12, 1972.

Gelsie Monti, Barre, for plaintiff.

McKee, Clewley & Fitzpatrick, Montpelier, for defendants.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SHANGRAW, Justice.

The plaintiff, a real estate broker, brought this action in Washington County Court to recover a commission relating to the sales of two pieces of property, one to Wizard, Inc., and the other to Marcel H. Rouleau and Marylyn G. Rouleau.

The plaintiff's complaint is in common counts.By way of specifications, he claimed the following:

[130 Vt. 100] To 5% commission due on sale of land for the Defendants in Berlin, Vermont, as follows:

5% for land sold of sale price of $225,000.00 to Wizard, Inc. $11,250.00

5% commission for finding customer, Marcel Rouleau, ready, able, and willing to purchase land in Berlin of Dorden Corporation 1,875.00

Each of the defendants denied liability and filed a joint answer setting forth:

1.DefendantsKenneth Denton and Dorden Corporation deny that the Plaintiff is entitled to any percentage of the sale price to Wizard, Inc., either as a principal or as co-broker since the Plaintiff was not the procuring cause nor did he make any contribution toward the sale of land to Wizard, Inc.

2.DefendantsKenneth Denton and Dorden Corporation both deny that the Plaintiff is entitled to any commission due on account of the Marcel Rouleau transaction since Rouleau is not ready, willing and able to purchase the property and in fact through his Attorney Jose Monte on August 16, 1969 notified the DefendantsKenneth Denton and Dorden Corporation that he desired to disaffirm any agreement to purchase and demanded return of his downpayment.

Trial was by jury on September 22 and 24, 1970, resulting in a verdict against the defendants of $13,125.00 'Plus interest Due'.On October 23, 1970, a Judgment Order was entered for the Plaintiff to recover of the defendants the sum of $13,125.00, with interest to October 22, 1970, in the sum of $787.50, plus costs of $66,00, amounting in the whole to $13,978,50.

The defendants moved for a directed verdict at the close of the evidence which was denied.They then also moved that the court strike from the plaintiff's specifications his claim of $11,250.00 representing 5% of the sale price of $225,000.00 for land sold to Wizard, Inc.This motion was also denied.Following the charge all parties took certain exceptions thereto.

On October 1, 1970the defendants filed a motion seeking the following relief: (I) that judgment be entered for the defendants notwithstanding the verdict of the jury; (II) that the verdict be set aside; (III) that the court order a remittitur or amend and alter the judgment; (IV) that a new trial be ordered; and (V) that judgment be entered in favor of the defendant, Kenneth N. Denton.All phases of this motion were overruled by the trial court.On October 27, 1970, the defendants filed a notice of appeal from the judgment order of October 27, 1970, and from the denial of the foregoing motion.

The defendant, Dorden Corporation, is a Massachusetts corporation having its office in South Hadley, Mass.The defendant, Kenneth N. Denton, since the inception of Dorden Corporation, was a stockholder and owned 97% of its corporate stock.Mr. Denton's wife and son owned the remaining 3% of the stock of this corporation.At all times material defendant Denton was the president, treasurer and chief executive officer or manager of the corporation.

Through the efforts of Denton, the Dorden Corporation acquired ninety-one acres of land in the Town of Berlin, Vermont, known as the 'Comstock' land.Charles E. Rockwell conveyed this land to Dorden Corporation by warranty deed dated April 21, 1969, which we shall hereinafter refer to as the 'Rockwell' premises.In order to have access to the Rockwell property Denton acquired an additional two acres, known as the 'Blow' land which was conveyed by Chester T. Blow and Ella C. Blow to Dorden Corporation on April 28, 1969.The total area thus acquired by the corporation was ninety-three acres of land.

Previous to the above conveyances, on February 25, 1969, a written agreement was entered into between Dorden Corporation and Kenneth N. Denton wherein it was recited that the corporation had in its possession duly executed agreements whereby it proposed to purchase certain property in the Town of Berlin.

The agreement of February 25, 1969 recited that Dorden Corporation was desirous of employing the services of Kenneth N. Denton to act as its broker in disposing of the property in Berlin, Vermont, and by its terms contained the following:

1.The Corporation gives to the Broker the EXCLUSIVE RIGHT TO SELL until the 31st day of May 1969 at midnight, under the terms and conditions hereinafter described, the parcels of land it has under agreement as hereinbefore referred to and briefly described as follows:

The agreement continued by describing the Rockwell land as containing 91 acres, more or less, and the Blow land as containing 2.15 acres, more or less.

The Dorden-Denton broker agreement further contained the following provisions:

2.The Corporation agrees to pay to the Broker, for his services, a commission of Ten Percent (10%) of the selling price of any parcel in accordance with the following Plan of Sales which is not fixed but serves as a guide:

Continuing, the agreement stated that of the 93 acres, seven acres were reserved for roads and the remainder of the acreage was zoned or broken down into four parcels with a sale price on each parcel.The commission to be received by Denton on each parcel represented 10% of the sale price.The total sale price was $309,500.00 with commission therein stated at $30,950.00.

The Dorden-Denton agreement also stated:

3.In consideration of the Corporation giving to the Broker the EXCLUSIVE right to represent it, the Broker agrees to do the following:

(a) Advertise and otherwise pursue the sale of the property described herein;

(b) Negotiate with and for the Corporation in connection with any prospects secured by whatever means;

(c) Cooperate with any qualified real estate broker on a basis of custom in the profession and, in advertising, invite broker participation.

(d) Accept the commission of Ten Percent (10%) as total compensation for all services.

Under date of March 31, 1969, the defendant, Denton, wrote plaintiff a letter concerning the sale of the Rockwell and Blow parcels of land.A plan of the 93 acres was enclosed wherein the acreage was broken down into four different colored zones, together with an allowance for roads.Each zone carried with it a separate sale price.The total sale price of the four zones, ranging from 15 acres to 26 acres, was $309,500.00.On the basis of these prices, Denton stated in the letter that plaintiff would receive a 10% commission.In the letter plaintiff was authorized to sell the zoned areas in any combination except as to the 15 acres zoned in red and priced at $82,500.00.He was, however, authorized to sell this 15 acre plot if kept intact.The letter continued by stating, 'If your party were (sic) willing to take the whole tract, we could accept a price of $260,000.00 and still pay the commission.'This letter was written on stationery containing the following letter head: 'Kenneth N. Denton, Development Consultant, South Hadley, Massachusetts 01075.'

Under date of April 8, 1969, Dorden Corporation and Marcel H. and Marylyn G. Rouleau entered into a written agreement whereby the corporation contracted to sell and convey to Mr. and Mrs. Rouleau 12.5 acres, more or less, of the Rockwell property for the agreed purchase price of $37,500.00.The purchasers made a down payment of $3,750.00, receipt of which was acknowledged in the agreement.

By a deed of warranty dated May 22, 1969, Dorden Corporation conveyed to Wizard, Inc., a Vermont Corporation, with its office at Burlington, Vermont, the Rockwell and Blow land for the sum of $225.000.00.

Previous to the above Dorden-Wizard conveyance, Wizard, Inc., by written agreement dated April 14, 1969, gave Denton the exclusive right and authority to sell the Rockwell-Blow properties for $309,500.00, and therein agreed to pay a commission of 10% '. . . covering such transactions by you or any person acting for you . . .'.Following this authorization, on June 20, 1969, Denton wrote plaintiff, Dindo, enclosing a copy of the Wizard, Inc. agreement, and in the letter authorized Dindo to act as a co-broker in the sale of the property.The letter also stated, 'Any sales which are made through your office, upon approval by Wizard, Inc., will result in a 5% commission to you.'

Then followed a letter from Denton to the plaintiff dated September 18, 1969, which, in part, referred to the property in Berlin, Vermont, near the hospital, formerly owned by Dorden Corporation and now by Wizard, Inc.By this letter plaintiff's authority to sell this property was revoked '. . . with the exception of the pending transaction with Marcel Rouleau, et al . . .'

Later, on August 31, 1970, Wizard, Inc. conveyed to Marcel H. and Marylyn G. Rouleau twelve and one-helf acres of the Rockwell acreage which they had bargained for with Dorden Corporation on April 8, 1969.

Marcel H. Rouleau became interested in the property which was shown to him by the plaintiff.As a refult of plaintiff's efforts Mr. and Mrs. Rouleau entered into a written agreement on April 8, 1969, to purchase 12,5 acres, more or less, of the Rockwell property for the agreed purchase price of $37,500.00.

Plaintiff had met Denton on several occasions and had given him the names of persons who might be interested in purchasing the corporation's property.

Leading up to the Dorden-Rouleau transaction the plaintiff had contacted Denton a number of times.Denton...