Flinders v. Gilbert

• Decision Date: 31 January 1963
• Docket Number: No. 10409,10409
• Citation: 378 P.2d 385,20 St.Rep. 84,141 Mont. 442
• Parties: Cecil FLINDERS and John Flinders, co-partners doing business as Flinders Agency, Plaintiffs and Respondents, v. Wayne GILBERT, Defendant and Appellant.
• Court: Montana Supreme Court

Page 385

378 P.2d 385

141 Mont. 442

Cecil FLINDERS and John Flinders, co-partners doing business as Flinders Agency, Plaintiffs and Respondents, v. Wayne GILBERT, Defendant and Appellant.

No. 10409.

Supreme Court of Montana.

Jan. 31, 1963.

Cedor B. Aronow and David O. DeGrandpre, Shelby (argued), for appellant.

Donald E. Ronish, Lewistown (argued), for respondents.

NAT ALLEN, District Judge (sitting in place of DOYLE, J.).

This is an appeal from a judgment entered on a directed verdict for the plaintiff. The undisputed facts are as follows:

Defendant owned a farm near Hobson, Montana, which he was buying from one Fitzwater. He was having difficulty in making his payments thereon and was unable to make the next payment due on July 1, 1960. To avoid losing his equity therein, defendant listed the farm for sale with ten real estate brokers, including the plaintiff. In each of these listing agreements the 'exclusive clause' was stricken from the contract by agreement between the broker and defendant and by them initialed.

Plaintiffs received their non-exclusive listing on March 11, 1960. Two other brokers working for plaintiffs, to-wit, Powell and Ira Smith, introduced and showed the Henke family defendant's farm about April 1, 1960. At this time, although the Henkes had the desire to buy, they were totally unprepared to do so and could not until they sold some property they owned in Sheridan County. Plaintiffs at all times knew this as evidenced by the testimony of Cecil Flinders, who testified that Gilbert told him that Henke could not buy until they got some of their assets converted into cash and that he [Cecil] had nothing to do with Henke's stockyards or feed lot in Loma, although he [Cecil] tried to sell the paper but was unsuccessful.

Further, John Flinders testified that Ira Smith was to sell Henke's contract before they would have the money to buy; that the Flinders tried to sell it but were not successful; that he knew Gilbert would lose his place if not sold by July 1, 1960; and the Flinders were all attempting to sell Henke's paper for him.

One of the other real estate brokers who had a non-exclusive listing on defendant's farm was one Hunt from Great Falls, who was given a listing in May 1960, and who had been given a previous listing on the same place in 1959 and was familiar with its physical layout. Henkes, in attempting to dispose of their inferest in the Sheridan County property, contacted the Hunt agency for assistance and Hunt informed Henkes he had a listing on defendant's place and Henkes told him they were interested in buying it. Mr. Hunt was able to sell Henke's property in Sheridan County and placed them in a position to buy defendant's farm. In fact Hunt made a personal loan of $12,000 to Henke to save the deal and complete the sale of the contract on the Sheridan County property, and pay defendant so he would not be in default on July 1, 1960, on the Fitzwater contract.

Hunt was paid $8,000 by the defendant as a commission on the sale of defendant's farm to the Henke family. There was at no time any question of bad faith on the part of either the plaintiff or the defendant in this case and there is no question of fraud of any kind to avoid payment of any commissions whatsoever.

When plaintiff learned of the sale by defendant to Henkes, the plaintiffs immediately demanded a second fee of $8,000 from defendant and upon defendant's refusal, this suit was instituted by plaintiffs.

The pertinent parts of the listing agreement between plaintiff and defendant are as follows:

'In the event that you, or any other brokers cooperating with you, shall find a buyer ready and willing to enter into a deal for said price and terms, or such other terms and price as I may accept, or that during your employment you place me in contact with a buyer to or through whom at any time within 180 days after the termination of said employment I may sell or convey said property, I hereby agree to pay you in cash for your services * * *.' Emphasis supplied.

The exclusive listing paragraph which was crossed out and initialed by both parties, reads as follows:

'THIS LISTING IS AN EXCLUSIVE LISTING and you hereby are granted the absolute, sole and exclusive right to sell or exchange the said described property. In the event of any sale, by me or any other person, exchange or conveyance, of said property or any part thereof, during the term of your employment, or in case I withdraw the authority hereby given prior to said expiration date, I agree to pay you the said commission just the same as if a sale had actually been consummated by you.' The expiration date of the contract, as extended, was June 30, 1960.

Plaintiff first contends that he complied with the contract and found a buyer 'ready and willing' in accordance with the terms of said contract, and cites Anderson v. Craig, 111 Mont. 182, 188, 108 P.2d 205, 206, in support of this. In the Anderson case the court was careful to point out that 'beyond doubt the broker had complied with the terms of his listing...