Green Mountain Realty, Inc. v. Fish, 188-74
| Decision Date | 01 April 1975 |
| Docket Number | No. 188-74,188-74 |
| Parties | GREEN MOUNTAIN REALTY, INC. v. Harold FISH and Eileen Fish. |
| Court | Vermont Supreme Court |
Mathew T. Birmingham, III, of Glover & Fink, Ludlow, for plaintiff.
Hanford G. Davis, Brandon, for defendants.
Before KEYSER, DALEY and LARROW, JJ., and SHANGRAW, C. J. (Ret.), Assigned.
Plaintiff brought this action to recover a commission of $1,500. claimed to be due from the defendants concerning the sale of certain real estate which the defendants owned in Pittsford.
The plaintiff alleged in its complaint that the defendants requested the plaintiff to procure a buyer of their property for $25,000.; that it procured purchasers, a Mr. and Mrs. Polley, who made a deposit of $500., but the defendants refused to sell; that two weeks later the defendants asked plaintiff to procure a sale of the property for $26,500.; and that thereafter defendants sold the property directly to the Polleys.
The defendants deny these allegations of the plaintiff, and further allege that there never was a listing agreement either oral or written as required by the rules of the Vermont Real Estate Board.
Hearing was by court which found for the plaintiff and entered judgment accordingly for $1,500. The defendants appealed.
A summary of the facts as disclosed by the findings follows.
The plaintiff corporation is owned and controlled by a Mr. and Mrs. Thompson who are licensed real estate brokers. In the summer of 1972, Mrs. Thompson and Mr. Fish were enrolled in a Dale Carnegie Course. The families became friendly socially and attended social functions together.
Mr. Fish had built and moved into a new house near his old home in Pittsford. One of the social gatherings was held in the new house and was attended by the Thompsons and others. At that time defendants asked the Thompsons to look over their old house. After doing so plaintiff told the defendants 'they should get at least $25,000.00 for said property at which time the defendant agreed that was a fair and just figure.'
About that same time, 'the plaintiffs (sic) had as clients people by the name of Polley' who 'wanted to buy or rent a house in the area.' Mrs. Thompson 'advised the Polleys that the defendants' house was available for rent' and directed them to the Fish property. This resulted in a rental lease agreement between the Polleys and defendants. Mr. Fish offered to pay a commission to plaintiff on the rental but Mrs. Thompson refused it saying 'it was an accommodation.'
Later, 'the Polleys inquired of the plaintiffs (sic) if the defendants would sell said house.' The plaintiff then checked with the defendants and were advised by them that they 'might sell' and asked that the Polleys 'make an offer.' Plaintiff gave this information to the Polleys. Subsequently, Mrs. Thompson prepared a deposit and sale contract for the Polleys to purchase the Fish property for $25,000. Mrs. Polley then signed the contract and left a deposit of $500. with Mrs. Thompson. She then took the contract offering to purchase the property for $25,000. to the Fish home. Mr. Fish was not at home and his wife refused to sign it.
After this Mr. Fish went to plaintiff's office and 'stated that he desired $25,000. net for said premises and indicated that he would sell said premises for $26,500.' Plaintiff advised the Polleys to this effect and then aided them to finance said premises. Hearing nothing further concerning the financing or sale, plaintiff inquired of Mr. Fish and learned that he was selling the property to the Polleys. The defendants did so in early 1973 for $25,500.
The court found that plaintiff did not have a written listing contract as required by the rules and regulations of the Vermont Real Estate Commission but rather relied upon 'defendants' oral statements.'
Effective July 1, 1969, the Legislature granted the Vermont Real Estate Commission the power to 'adopt, amend and revise as it deems necessary, reasonable rules consistent with this chapter in order to carry out and effectuate its purposes.' 26 V.S.A. § 2254. Pursuant thereto, in the manner provided by 3 V.S.A. § 803, the Commission adopted and promulgated its rules the legality of which is not questioned. The rules included the following:
16. Listing Agreements
(1) . . .
(2) Every listing agreement shall be in writing. It shall contain a clear and definite statement of the commission to be allowed the agent. It...
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