Grant v. White, 8507
| Decision Date | 17 April 1968 |
| Docket Number | No. 8507,8507 |
| Citation | 439 P.2d 828,103 Ariz. 257 |
| Parties | Maurice GRANT and Big Ben Realty Company, Inc., an Arizona corporation, Appellants, v. Lewis C. WHITE and Edith White, husband and wife, Appellees. |
| Court | Arizona Supreme Court |
Mariscal, Goss, Green & Corbet, by Harry T. Goss, Phoenix, for appellants.
Ryley, Carlock & Ralston, by William C. Taylor, Phoenix, for appellees.
This case is before us on an appeal from a judgment of the superior court in favor of defendant-appellant. Affirmed.
Maurice Grant and Big Ben Realty, Inc., hereinafter referred to as the brokers, sued Lewis and Edith White, hereinafter referred to as sellers, for a real-estate commission on the sale of a large parcel of sellers' property. Most of the disputed facts were resolved by the findings of fact made by the trial court. These findings were amply supported by the evidence, and so are binding on us. Barnett v. Hitching Post Lodge, 101 Ariz. 488, 421 P.2d 507.
The brokers received from the sellers a written listing of the property, agreeing to pay a ten per cent commission. Brokers produced a prospect named Bechanstin who made an offer, coupled with $10,000 carnest money, at a price twenty-five per cent below that specified in the listing. After some negotiations, buyer and sellers came to an agreement which was evidenced by escrow instructions dated March 1, 1957, deposited with Phoenix Title and Trust Co. These instructions were signed by the buyer and sellers, and were approved for the brokers by Maurice Grant. They were long and involved, and included a provision that the commission should be paid as follows:
(a) One-half ($23,100) at close of escrow;
(b) One-fourth ($11,550) after one year; and
(c) One-fourth ($11,550) after two years.
Sellers were to convey title to all of the property to Phoenix Title & Trust Co., as trustee, with provisions for partial releases as payments were received from the buyer, who was to pay into escrow (including the $10,000 earnest money) $138,000 by June 1, 1957.
The buyer was unable or unwilling to make the required additional payment of $128,000 on June 1. The agreement gave him the right to nominate another person as purchaser. He nominated a corporation known as Phoenix-Hartford Investment Co., wich himself as principal stockholder, and with Ben Schleifer of Big Ben Realty Co. as a stockholder in the amount of his half of plaintiffs' commissions, which were assigned to the buyer to help make the required down payment. It was still necessary to get defendants to agree to accept a smaller down payment, or the deal would fall through. Defendants offered to accept $20,000 less for the down payment, provided that plaintiffs would take one-half of their commission out of payments received by the seller subsequent to the down payment, and would agree that in the event of a forfeiture by defendants because of nonpayment of the buyer, any commission still due would cease to be a liability of defendants. Plaintiffs signed a written amendment to the escrow instructions to that effect, and defendants agreed to accept and did accept a down payment of only $118,000 instead of the previously agreed $138,000.
The sellers paid the brokers the one-half of the commission as agreed, but later forfeited the sale contract because of the buyer's failure to continue the payments. This suit, by the brokers, is for the second half of the commission.
Seller Lewis White says that it was understood the commission would be payable only if the buyer kept up his payments during the first two years. We first consider the question as to whether the last agreement in regard to the real-estate commission is valid.
The main argument of the brokers in the instant case is: Since the commission was absolutely earned and payable when the excrow was signed, and since the commission could not be lost by a subsequent failure of the buyer to perform, there was no consideration for a subsequent written promise to make the payment of one-half the commission contingent upon future payments by the buyer. This argument ignores some of the most elementary rules of consideration. The brokers contend that there was no financial gain or any benefit running from sellers to the broker Grant. There is nothing in the law to the effect that consideration is based only on a benefit to the promisor. Consideration may be entirely without benefit, if there is a detriment to the promisee. Cavanaugh v. Kelly, 80 Ariz. 361, 297 P.2d 1102. In ...
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