Francis T. Zappone Co. v. Mark

• Decision Date: 27 August 1985
• Citation: 497 A.2d 32,197 Conn. 264
• Parties: FRANCIS T. ZAPPONE COMPANY v. Joan M. MARK et al.
• Court: Connecticut Supreme Court

Page 32

497 A.2d 32

197 Conn. 264

FRANCIS T. ZAPPONE COMPANY v. Joan M. MARK et al.

Supreme Court of Connecticut.

Argued March 14, 1985.

Decided Aug. 27, 1985.

Ross T. Lessack, Waterbury, with whom, on brief, was Edward T. Dodd, Jr., Waterbury, for appellant-appellee (defendant Howard T. Brennan).

Richard Bruno, Waterbury, for appellee-appellant (plaintiff).

Before PETERS, C.J., and HEALEY, SHEA, DANNEHY and SANTANIELLO, JJ.

SANTANIELLO, Justice.

The defendant Howard T. Brennan, having been found jointly liable with the defendant Sara Kramer to the plaintiff in the amount of $30,000 pursuant to a promissory note between the parties, has appealed to this court. On appeal he claims that the court erred in concluding that: (1) the promissory note, executed to secure a real estate commission, was enforceable without the written listing agreement being produced at trial; (2) the mere execution of a bond for deed without transfer of title entitled the plaintiff to a real estate commission; and (3) the plaintiff produced an able buyer thereby entitling the plaintiff to a real estate commission. The plaintiff has cross appealed from the trial court's failure to award attorney's fees.

The underlying facts, set forth in the trial court's memorandum of decision, are essentially undisputed. The plaintiff, Francis T. Zappone Company, is a Connecticut corporation located in Waterbury. It performed services as a real estate broker. The defendant Brennan hired the plaintiff to act as broker for a sale of his property located in Waterbury. The plaintiff negotiated a sale of the building to the defendants Mark ¹ and Kramer for a purchase price of $286,000. Brennan agreed to pay a real estate commission of $28,000 on the sale and paid $8000 towards the commission. The buyers, Mark and Kramer, became jointly liable with Brennan for the commission owed to the plaintiff. Brennan gave Mark and Kramer a bond for deed which provided that the seller would give the buyers a warranty deed when the buyers had fully performed the sales agreement. Mark and Kramer paid $1000 to Brennan on delivery of the bond for deed, and all three signed a note to the plaintiff for $20,000, which represented the balance of the broker's commission due.

The listing agreement was not offered in evidence or made available to the trial court until after the trial. The plaintiff testified that there was a listing agreement setting forth the terms of the transaction. Brennan acknowledged the existence of the listing agreement and that it called for the plaintiff to produce a ready, willing and able buyer. The court found that an enforceable agreement had been entered into between Brennan, Mark and Kramer, and found for the plaintiff on the note in the sum of $20,000 plus interest. Brennan thereupon moved to open the judgment and offered the listing agreement as a supporting exhibit. The trial court accepted the listing agreement as an exhibit and thereafter the court refused to open the judgment further so as to allow Brennan to reargue his position including the amount of the commission.

Brennan's first claim on appeal is that the trial court erred in concluding that the promissory note, executed to secure a real estate commission, was enforceable without production of the written listing agreement at trial. "[A]n action to recover a commission arising out of a real estate transaction cannot be maintained unless there is a written contract or authorization expressing the underlying agreement." Seaman v. King Arthur Court, Inc., 35 Conn.Sup. 220, 222-23, 404 A.2d 908 (1979); see General Statutes § 20-325a(b). Brennan concedes that there was a listing agreement, properly executed, which complied with all the formal requirements of General Statutes § 20-325a(b). He contends that, because the listing agreement upon which the note was based was not introduced at trial, the court erred in finding the note valid. The court made a finding of fact that there was an enforceable agreement entered into by and between all three original defendants. Although the agreement was not offered in evidence or made available to the court during the trial, it was made an exhibit by Brennan before the conclusion of the case when he filed a motion to open the judgment. This introduction of the listing agreement as an exhibit cured any defect that may have existed as a result of the plaintiff's failure to introduce the agreement at the actual trial.

Brennan's second claim is that the trial court erred in concluding that the execution of a bond for deed, without the actual passing of title, entitled the plaintiff to a real estate commission. " 'Under the doctrine of equitable conversion ... the purchaser of land under an executory contract is regarded as the owner, subject to the vendor's lien for the unpaid purchase price, and the vendor holds the legal title in trust for the purchaser. 55 Am.Jur. 782 [Vendor and Purchaser § 356]. The vendor's interest thereafter in equity is in the unpaid purchase price, and is treated as personalty; Bowne v. Ide, 109 Conn. 307 [, 147 A. 4 (1929) ]; while the purchaser's interest is in the land and is treated as realty. 18 C.J.S. 49 [Conversion § 9].' Cooper v. Polayes, 19 Conn.Sup. 353, 354-55, 113 A.2d 599 (1955)." Society for Savings v. Bragg, 38 Conn.Sup. 8, 13-14, 444 A.2d 919 (1981). "A broker has fully performed his task when he brings the parties to an enforceable agreement." Walsh v. Turlick, 164 Conn. 75, 80, 316 A.2d 759 (1972). If, "without any fraud, concealment, or other improper practice on the part of the broker, the principal accepts the person presented ... upon the terms ... proposed ..., and enters into a binding and enforceable...