Ginn v. Macaluso

• Decision Date: 18 April 1957
• Docket Number: No. 6120,6120
• Citation: 62 N.M. 375,1957 NMSC 33,310 P.2d 1034
• Parties: Leonard C. GINN, d/b/a Ginn Agency Realtors, Plaintiff-Appellant, v. Charles MacALUSO and Louise MacAluso, his wife, Defendants. Louise MacAluso, Appellee.
• Court: New Mexico Supreme Court

Page 1034

310 P.2d 1034

62 N.M. 375

Leonard C. GINN, d/b/a Ginn Agency Realtors Plaintiff-Appellant, v. Charles MacALUSO and Louise MacAluso, his wife, Defendants Louise MacAluso, Appellee.

No. 6120.

Supreme Court of New Mexico.

April 18, 1957.

McAtee, Toulouse & Marchiondo, Albuquerque, for appellant.

Rodey, Dickason, Sloan, Mims & Akin, Albuquerque, for appellee.

PER CURIAM.

Upon consideration of this appeal upon rehearing we have concluded the opinion heretofore filed in said cause should be withdrawn and the one to follow substituted in its place and stead.

SADLER, Justice.

The plaintiff as an appellant before this Court complains of the judgment of the district court of Bernalillo County in dismissing his complaint against one of two defendants in an action brought by him in the district court of that county for the recovery of a real estate commission said to have been earned on the sale of a motel located in the city of Albuquerque.

The defendants in the action were Charles MacAluso and Louise MacAluso, his wife, owners of the motel, and the plaintiff, engaged as a real estate borker in the city of Albuquerque, claimed he had a listing of the property for sale according to its terms as per copy attached to his complaint as Exhibit 'A' which he relied upon as compliance with 1953 Comp. Sec. 70-1-43. The statute mentioned requires a writing as a condition to the recovery of a commission, or other compensation, upon the sale of real estae, signed by the party to be charged, or by some other person thereunto lawfully authorized.

But to quote the statute:

'70-1-43. Any agreement entered into subsequent to the first day of July, 1949, authorizing or employing an agent or broker to purchase or sell lands, tenements, or hereditaments or any interest in or concerning them, for a commission or other compensation, shall be void unless the agreement, or some memorandum or note thereof shall be in writing and signed by the person to be charged therewith, or some other person thereunto by him lawfully authorized. No such agreement or employment shall be considered exclusive unless specifically so stated therein.'

The complaint with Exhibit 'A' attached discloses that it bore the name on the listing of Charles MacAluso, alone. The wife, Louise, admitted in a deposition that she signed her husband's name to the listing but, as she said, only for purpose of identification. It was relied on, however, as binding both Charles MacAluso and Louise MacAluso, his wife. Other allegations appearing in the complaint claimed the plaintiff produced a purchaser for the property pursuant to the listing at a price agreeable to the defendants who closed a deal with the purchaser and sold him the property for $130,000, becoming bound thereby to plaintiff for an earned commission of $6,500. The motel in question was known as the Silver Spur Motel.

The defendants answered, denying the writing relied upon as a listing had any validity as such. With the issues thus drawn depositions of Louise MacAluso, one of the defendants, Leonard C. Ginn, the plaintiff, and Jerry Mottl, the purchaser, were taken on October 22, 1955, and actually filed in the case on November 14, following. In the meantime and on November 8, 1955, the defendants moved for summary judgment and following a hearing one was entered in favor of Louise MacAluso on February 28, 1956, sustaining the motion for dismissal as to her and denying the same as to the defendant, Charles MacAluso. Judgment having been entered dismissing the action with prejudice as to Louise MacAluso, the plaintiff as an appellant prosecutes this appeal for the revision and correction thereof.

Two points are relied upon by the plaintiff as appellant in this Court, as follows:

'I. The court erred in dismissing the cause of action as to defendant Louise MacAluso as the signing of the name 'Charles MacAluso', by Louise MacAluso, to the real estate listing contract was sufficient as a matter of law to satisfy the requirements of Section 70-1-43, N.M.S.A., and be binding upon her.

'II. The court erred in dismissing the cause of action as to defendant Louise MacAluso as sufficient evidence was produced from which the trier of fact could reasonably infer that defendant Louise MacAluso intended to bind herself to the real estate contract.'

Counsel for the defendant, Louise MacAluso, frankly admit that if Point I, above, is ruled adversely to her they no longer would contend that she was entitled to a summary judgment. Accordingly, we shall address ourselves to the merits of plaintiff's Point I, urging the listing attached as Exhibit 'A' to his complaint meets the requirements of 1953 Comp. Sec. 70-1-43.

So it is that we must determine whether the trial court correctly ruled in sustaining the motion for defendants for summary judgment dismissing plaintiff's complaint as to the defendant, with prejudice. In resolving this question we must view the testimony in the most favorable aspect it will bear in support of the plaintiff's claim of right to go to the jury. One contesting the right bears a heavy burden. Michelson v. House, 54 N.M. 197, 218 P.2d 861, 863. As said in this case:

'A motion for summary judgment is not to be considered as a substitute for a trial and should not be granted where there is a genuine issue of material fact. Rule 56(c), our rules, Sec. 19-101(56) N.M.Stats.1941 Compilation; McLain v. Haley, 53 N.M. 327, 207 P.2d 1013; Agnew v. Libbey, 53 N.M. 56, 201 P.2d 775. Litigants are entitled to the right of trial where there is the slightest doubt as to the facts. Ramsouer v. Midland Valley Railroad Co., D.C., 44 F.Supp. 523; Whitaker v. Coleman, 5 Cir., 115 F.2d 305.'

The burden resting on one objecting to the motion is closely akin to that to be borne by a defendant seeking to sustain here a judgment entered on a verdict directed against a plaintiff when he rests in putting on his case. See, Telman v. Galles, 41 N.M. 56, 63 P.2d 1049; Paulos v. Janetakos, 41 N.M. 534, 72 P.2d 1; Lindsey v. Cranfill, 61 N.M. 228, 297 P.2d 1055, 1057. In the latter case, we said:

'Plaintiff-appellant first suggests that, since the directed verdict was sustained, the consideration of testimony put in by plaitniff before the motion was made should have every reasonable inference flowing from it and that all conflicts in the evidence should be disregarded, the action of the court resting solely upon the substantial evidence supporting plaintiff's cause of action. Plaintiff cites In re Garcia's Estate, 45 N.M. 8, 107 P.2d 866; Morrison v. First National Bank, 28 N.M. 129, 207 P. 62; Sanchez v. Torres, 35 N.M. 383, 298 P. 408; Jackson v. Gallegos, 38 N.M. 211, 30 P.2d 719; Pankey v. Hot Springs National Bank, 46 N.M. 10, 119 P.2d 636.

'We agree with plaintiff's statement as to the consideration of testimony required when ruling upon a motion for directed verdict.'

What, then, on the record before us, are the facts permissibly for consideration by us in passing upon the propriety of the trial court's action in sustaining defendants' motion to dismiss the plaintiff's action with prejudice as to the defendant, Louise MacAluso, wife of the defendant, Charles MacAluso?

The defendants owned and operated a property in Albuquerque, known as the Silver Spur Motel, at all times material to the present controversy. During the same period, Leonard C. Ginn, was a licensed realtor in the city of Albuquerque engaged in the business of making sales and exchanges of real property for owners, and receiving as compensation therefor an agreed commission on the sale price.

The defendants acquired the motel property in question in late July, 1954. For some years prior thereto they had bought and sold property to a considerable extent, the wife, Louise, usually taking the leading part in such sales and purchases. It was not surprising, then, to find them, soon after the purchase of this property, placing the same on the market and looking for a purchaser at an advantageous price. So it was that as early as the first month, August, after their purchase of the property, they were in contact with the plaintiff, Ginn, who held numerous conversations with them touching a sale of the motel during that month.

These meetings and conversations continued, intermittently, down to October 12, 1954, prior to which time the plaintiff had shown the motel three or four times to various prospects. Indeed, the matter of a sale by him had reached the point where, apparently, he felt he should have something a little more assuring than an oral authorization to represent them in a sale. Accordingly, on the date mentioned, he presented them a formal listing, containing the usual data, such as location, sale price, terms, etc., and asked for their signatures. On it, and as per directions from them, Charles MacAluso was given as the person to contact for showing the motel to customers. Sale price was given as $140,000.

There also appeared on the listing two forms for designation of the nature of the representation of the realtor, one and the first appearing, a 'Non-exclusive Listing' and below it an 'Exclusive Listing.' It was when defendants were thus presented with a choice of listings that they, for the first time, divulged to plaintiff they had already given an exclusive listing to another firm of relators in Albuquerque, namely, Jennings & Johnson.

Having been thus advised, the plaintiff dropped further interest in the matter and, for the time being, made no further efforts toward selling the property. He informed them at this time he was not disposed to have anything to do with the property so long as there was an exclusive listing outstanding. It may be worth noting, however, the defendants at the time of disclosing the fact of an exclusive agency and exhibiting the same to plaintiff, expressed doubt as to whether it was binding on them. The plaintiff suggested if they entertained doubt on that score, that the best way to...