Goodman v. Kelly

• Decision Date: 18 March 1964
• Docket Number: No. 3176,3176
• Citation: 390 P.2d 244
• Parties: Paul H. GOODMAN, d/b/a Good Realty Company, Appellant (Plaintiff below), v. Boyd KELLY, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 244

390 P.2d 244

Paul H. GOODMAN, d/b/a Good Realty Company, Appellant (Plaintiff below), v. Boyd KELLY, Appellee (Defendant below).

No. 3176.

Supreme Court of Wyoming.

March 18, 1964.

A. Joseph Williams and Brooke Wunnicke of Williams, Wunnicke & Fennell, Cheyenne, for appellant.

Edwin V. Magagna, Rock Springs, for appellee.

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

Mr. Justice GRAY delivered the opinion of the court.

Plaintiff, Paul H. Goodman, a real estate broker doing business as the Good Realty Company, brought action to recover a commission claimed due under a listing authorizing him to sell certain real estate and equipment for defendant, Boyd Kelly. From an adverse judgment, entered pursuant to a jury verdict, plaintiff appeals.

There is little dispute as to the facts pertinent to the appeal. At all times herein plaintiff was a licensed real estate broker in Wyoming with some twenty-two years' experience in the business. Defendant was the owner of a ranch near Daniel, Wyoming, and under date of August 3, 1956, signed a listing agreement whereby defendant granted to plaintiff the right to sell defendant's ranch and equipment at a price of $400,000, for which plaintiff was to receive a commission of two per cent. The agreement was on a printed form furnished and used by plaintiff for such purposes, and with the exception of defendant's signature, all handwriting on the form was that of the plaintiff. Among other things, the agreement reserved to defendant the right to make sale of his property through his own efforts without liability to plaintiff for the commission, with the proviso, however, that plaintiff would be entitled to his commission 'in case said property is sold within six months after the termination of this listing to James Bros. of Jackson or any other person introduced to or shown said property through your [plaintiff's] advertising or efforts.' Inasmuch as sale of the property was made by defendant to 'James Bros. of Jackson' on May 6, 1957, without the assistance or participation of plaintiff, the termination date of the listing is of critical importance. The agreement provided:

'* * * This listing shall continue until Nov. 1, 1956, and thereafter until terminated in writing days in advance.'

By way of explanation for failure to fix a specific number of days for advance notice as seems to be contemplated by the form, the plaintiff, called by defendant under Rule 43(b), W.R.C.P., and over objection of his counsel, testified as follows:

'Q. Now, handing you what has been marked for identification as Plaintiff's Exhibit 1, did you and Mr. Kelly have any discussion relative to the last sentence contained therein? A. Yes, we did. I pointed out that it reads there, until November 1st, and thereafter until given notice in writing. So since there is no need in putting a number of days, any time that you want me to quit, my services are not satisfactory, why you just give me a letter in writing that you don't want me to work on it any more, so we did not put in any number of days, which is my custom, as I do nearly all of my listings.

'Q. You say you do that in all of your listings? A. Nearly all of them unless they insist upon it--unless they insist to the contrary.'

Although defendant denied such conversation occurred, we think a reasonable view of his testimony was to the effect that the life of the listing was discussed but that the termination date was to be fixed as of November 1, 1956. In any event, defendant so treated the listing and failed to notify plaintiff in writing at any time that the listing was revoked as of that date. We have already mentioned that defendant, acting for himself, made sale of the property to James Bros. six days after the six-month period from November 1, 1956, had elapsed. Plaintiff testified that he did not learn of the sale until after it was consummated and thereupon made demand on defendant for his commission to no avail. This litigation followed.

In presenting the matter to us, the parties center their attention upon the provisions of the agreement, and in that respect we refer briefly to the pleadings. For his right of recovery, plaintiff alleges that the listing was to remain in full force and effect until November 1, 1956, and thereafter until terminated in writing; that under its terms plaintiff was to receive his commission if sale was made by defendant to James Bros. within six months of the termination date of the listing; that defendant failed to terminate the listing in keeping with its terms, and during the effective period of the listing sold the property to James Bros. for the sum of $388,000; and that as a result of such sale defendant owes plaintiff the commission fixed by the listing. Plaintiff also alleged bad faith on the part of defendant in making the sale, but abandoned such issue at the trial and relied solely upon the terms of the listing.

In answering, defendant admits the signing of the listing and the sale to James Bros. on May 6, 1957; denies that such sale was made at a time when said listing was in effect; alleges that defendant sold the property 'after said listing had expired by its own terms'; and then, concerning the failure of the agreement to fix a specific time for advance notice of termination, alleges 'that it was the intent of the parties that said listing was to expire by its own terms on November 1, 1956, and was not to continue thereafter until terminated in writing and for that reason no time for said written notice was inserted in said listing in the blank provided therefor.' Defendant also alleges waiver and abandonment by plaintiff of the conditions imposed by the listing, but the only evidence offered in support is that plaintiff, after November 1, 1956, had not taken the James Bros. to defendant's ranch. Aside from lack of evidence to support the affirmative defense, defendant must be held to have waived the matter. Defendant took no exception to Instruction No. 2 whereby the only issue tendered to the jury was the question of whether it was the intention of the parties that the contract 'was to expire November 1, 1956,' or whether it was the intention of the parties 'as expressed in said listing that it would not expire until written notice was given by defendant.'

At the close of the evidence, the sale to James Bros. on May 6, 1957, having been established, plaintiff moved for a directed verdict in keeping with his theory of the case that the listing was not ambiguous with respect to time and provision for termination, and for such reason 'the construction of the contract is a legal question for the determination by the Court and is not a question of fact to be determined by the Jury.' The motion was overruled, and over the further objection of plaintiff to Instruction No. 2, the question of intent was submitted as above noted.

In order clearly to delineate the matters submitted for our consideration, some further comment on the state of the record is indicated. Plaintiff claimed error in that the verdict was contrary to the evidence, and the judgment contrary to law; also, that the...