First of Maine Commodities v. Dube
Decision Date | 18 December 1987 |
Citation | 534 A.2d 1298 |
Parties | FIRST OF MAINE COMMODITIES v. Roger J. DUBE et al. |
Court | Maine Supreme Court |
Robert J. Daviau (orally), Daviau, Jabar & Batten, Waterville, for plaintiff.
James A. McCormack (orally), Richardson & Troubh, Portland, for defendants.
Before McKUSICK, C.J., and NICHOLS, WATHEN, GLASSMAN, SCOLNIK and CLIFFORD, JJ.
Defendants Roger and Rita Dube appeal a judgment entered by the Superior Court (York County) following a jury trial awarding to plaintiff First of Maine Commodities ("Commodities") the $69,000 broker's commission it claimed for producing a ready, willing, and able buyer for certain real estate in Old Orchard Beach owned by the Dubes. Finding no reversible error, we affirm.
On April 10, 1984, the Dubes signed an "exclusive right to sell" listing agreement with plaintiff Commodities, a corporation that at all times relevant to this case has acted through its president, Alan Theriault, a licensed real estate broker. With the exception of sales to three named individuals already negotiating with the Dubes, the listing agreement gave plaintiff the exclusive right to sell defendants' hotel and apartments located at 27 East Grand Avenue in Old Orchard Beach. The agreement ran for only one week; namely, until midnight, April 17. The listing price was $1.1 million, with $100,000 earnest money and the remainder to be paid in cash at closing. The agreement specified the broker's fee as a percentage formula resulting in a $69,000 commission on a sales price of $1.1 million. Finally, the agreement required payment of the commission if the broker negotiated a sale for the Dubes "at any other price or terms acceptable to" them.
On April 13 Theriault brought to the Dubes an offer of $1 million for the property from Ronald Vincent and David Rapaport, accompanied by earnest money of $100,000. The offer also conditioned the sale on the provision by the sellers of a title abstract and title insurance, as well as on the completion of an adequate land survey and the buyers' successful procurement of licensing for the condominium project they planned. When presented with the offer Mrs. Dube did not reject it but did express disappointment with the price. At trial, testimony of the parties sharply disputed whether she made any objection to the conditions additional to those expressly provided for in the listing agreement.
Over the next few days Theriault attempted without success to get a more definitive response from the Dubes to the offer. On Monday, April 16, after turning Theriault away from her door but asking him to call her that evening, Mrs. Dube and her husband left town, spending that night with her niece in Brunswick and then Tuesday night with her sister in Lewiston, not returning to Old Orchard Beach until Wednesday morning, April 18. Unable to contact the Dubes, Theriault went back to Rapaport and Vincent on April 17, the last day of the agreement, and got them to increase their offer to $1.1 million, with no substantive changes in the other terms set forth in their first offer. Theriault left this offer at the Dubes' home the night of April 17. When Theriault called the Dubes the next day Mrs. Dube told him he was too late with the offer.
Commodities commenced this action on September 20, 1984, seeking recovery of the $69,000 broker's commission provided under the listing agreement. In their answer defendants denied the claim and counterclaimed for rescission of the listing agreement and for attorney fees under the Consumer Solicitation Sales Act, 32 M.R.S.A. §§ 4661-4670 (1978 & Pamph.1986), and the Unfair Trade Practices Act, 5 M.R.S.A. § 213 (1979 & Supp.1987). At the conclusion of the trial held on August 18-21, 1986, the jury found specially for plaintiff that the plaintiff-broker had "produced ready, willing, and able buyers for the property in accordance with the terms authorized by the listing agreement." 1 On the special verdict the court entered a judgment awarding plaintiff the $69,000 broker's fee plus interest and costs and denying defendants' counterclaim. The Dubes appealed in a timely manner to this court.
Under Maine law a broker earns his commission when he has procured
a prospective purchaser ready, willing and able to purchase the property on the terms and conditions specified by the seller and communicated to the broker at the time of the listing....
Bowley v. Paine, 291 A.2d 712, 714 (Me.1972). See also Jordan v. McNally, 124 Me. 216, 220-21, 126 A. 876, 877 (1924). Whether a broker has earned his commission within the terms of the agreement is a question of fact, Carter v. Beck, 366 A.2d 520, 522 (Me.1976), and on review we will uphold the verdict if there is credible evidence that would allow the jury rationally to reach the result that it did. True v. Ladner, 513 A.2d 257, 265 (Me.1986). Here the jury specially found as a fact that the broker had produced ready, willing, and able buyers in accordance with the terms authorized by the listing agreement. Since we find the jury's special verdict adequately supported by the trial evidence, we affirm the judgment entered thereon.
Although the April 17 offer by Rapaport and Vincent of $1.1 million included numerous conditions not specifically set out in the listing agreement, that agreement also stated that the commission must be paid if a sale is completed during the listing period "at any other price or terms acceptable to owner." We must affirm the special finding, therefore, if the evidence presented at trial could reasonably allow a jury to find as a fact that, together with the $1.1 million sale price, the additional conditions were "other ... terms acceptable to" the Dubes.
When Theriault presented on April 13 the first offer of $1 million along with the additional conditions not specifically set forth in the listing agreement, Mrs. Dube at that time expressed disappointment with the offered price. A jury could reasonably have concluded, however, that she did not object to the additional conditions. Theriault testified that he had discussed the conditions that would be in the April 13 offer in a general manner with Mrs. Dube at the time she signed the listing agreement:
[I]t seemed all these things were pretty much common in that I suspected that they would show up in any agreement that would be made anyway.... So these are things to get started and it was just items that we had talked about.
He also testified that when he brought her the original offer Mrs. Dube did not object to those specific conditions, did not reject the offer, and expressed disappointment only with the price. Mrs. Dube herself testified that perhaps she had not rejected the conditions "outright" and had not specifically rejected this offer.
From that testimony a jury rationally could infer that the Dubes found acceptable everything in the April 13 offer except the $1 million price, and therefore when Theriault returned on April 17 with the $1.1 million offer and no additional conditions, he had produced an offer at the price established in the listing agreement and with "other ... terms acceptable to [the] owner." Having done so, Commodities had earned the $69,000 commission under the listing agreement.
Defendants also contend that the listing agreement is void because of its failure to comply with the Maine Solicitation Sales Act, 32 M.R.S.A. §§ 4661-4670. That Act allows a consumer to void a contract for the sale of merchandise within three days of executing the agreement if the salesman made an unsolicited first contact with the consumer personally or by phone anywhere other than at the salesman's place of business. Id. § 4663. 2 The statute requires any contract coming within its terms to include a full statement of the consumer's right to avoid. Id. § 4662. Any violation of the Act constitutes as well a violation of Maine's Unfair Trade Practices Act. Id. § 4670. Because of Commodities' failure to include notice of the Dubes' right to avoid the listing agreement, they are seeking equitable relief under the Unfair Trade Practices Act, including rescission of the contract and reasonable attorney fees. See 5 M.R.S.A. § 213(1)-(4).
We reject defendants' contention, however, that exclusive listing agreements between licensed brokers and sellers of real estate come within the scope of Maine's Consumer Solicitation Sales Act. That statute incorporates by reference Maine's Unfair Trade Practices Act, the equitable remedies of which the Dubes are now seeking in their counterclaim. The Unfair Trade Practices Act itself contains the following exception from its scope:
Nothing in this chapter shall apply to:
1. Regulatory boards. Transactions or actions otherwise permitted under laws as administered by any regulatory board or officer acting under statutory authority of the State or of the United States; ....
Under the statutory authority of the State of Maine, the Maine Real Estate Commission regulates the sales efforts of licensed brokers. 32 M.R.S.A. §§ 4051 to 4051-C (1978 & Pamph.1986)....
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