Dixon v. Credit Bureau of Douglas, 3532

• Decision Date: 07 November 1966
• Docket Number: No. 3532,3532
• Citation: 419 P.2d 707
• Parties: Mabel E. DIXON, Appellant (Defendant below), v. CREDIT BUREAU OF DOUGLAS, Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 707

419 P.2d 707

Mabel E. DIXON, Appellant (Defendant below), v. CREDIT BUREAU OF DOUGLAS, Wyoming, Appellee (Plaintiff below).

No. 3532.

Supreme Court of Wyoming.

Nov. 7, 1966.

Alfred G. Kaufman, Jr., Douglas, for appellant.

Burley & Hand, Douglas, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.

Mr. Chief Justice PARKER delivered the opinion of the court.

The Credit Bureau of Douglas filed a complaint against Mabel E. Dixon for $2,025 due on a real estate commission contract. ¹ Defendant's answer admitted the execution of the instrument upon which the claim was based but denied generally and alleged that the purchasers of the real estate defaulted on the terms of the contract of sale, which was terminated, and purchasers acknowledged the default and executed a complete release of the contract. Plaintiff filed a motion for summary judgment with supporting affidavits; defendant filed affidavits in opposition to the motion; and ad interim a pretrial conference was held and order issued thereon, reciting the admission by agreement of counsel without foundation proof of the written agreements relating to the controversy. The court stated in its order that 'there is no dispute of fact * * * excepting the issue as to whether or not Mr. Taylor was an able buyer, and * * * the controversy turns on the question of whether or not, under the undisputed circumstances, Mrs. McCormick earned her commission.' Thereafter, the court found that plaintiff was entitled to judgment as a matter of law and that there was no material issue of fact; summary judgment issued for plaintiff in the amount claimed, $2,025, from which judgment this appeal was taken.

The basal facts of the case are contained in four written instruments, the first an 'Agreement' of June 15, 1964, by which defendant as vendor agreed to sell to Kenneth and Dorothy Taylor patented lands and chattels for $40,500, payable in three installments of $1,000 in 1964, two of $2,500 in 1965, and the balance of $32,500 by January 1, 1966, the parties thereto having stated among other things that 'this Agreement is intended to be a Lease-Sell-Purchase Agreement by which the installments of various sums as hereinabove provided shall apply on the purchase price.' Attached to the foregoing agreement was one between defendant Dixon and Vera McCormick reciting that $32,500 was due on January 1, 1966, that the sale was the result of the efforts of Mrs. McCormick, realtor, and that Mrs. Dixon agreed to pay her therefor $2,025 from the balance of the purchase price. ² The third 'Agreement' was executed April 26, 1965, between Mrs. Dixon and the Taylors, referred to the original sales agreement and, inter alia, recited that the Taylors were in default on their first 1965 $2,500 payment, that the original sales contract had thereby become void, that the purchasers should have until May 7, 1965, and no longer, in which to secure financing and pay the total balance of the terminated purchase contract, $37,500, and that in the event of non-delivery of the named amount the escrow agent was to deliver to vendor a mutual release. The fourth instrument was the mutual release, dated April 26, 1965, in which the Taylors in consideration of the release and Mrs. Dixon in consideration of the payment of the $37,500 mutually released each other from liabilities arising out of the original sales contract.

Although defendant peripherally concludes that the court erred in refusing a jury trial, this unsupported point requires no discussion since the propriety of the summary judgment turns upon the correctness of the court...