Havens v. Irvine, 2258

• Decision Date: 10 April 1945
• Docket Number: 2258
• Citation: 157 P.2d 570,61 Wyo. 309
• Parties: H. C. HAVENS, Plaintiff and Respondent, v. WILLIAM IRVINE, Defendant and Appellant
• Court: Wyoming Supreme Court

157 P.2d 570

61 Wyo. 309

H. C. HAVENS, Plaintiff and Respondent, v. WILLIAM IRVINE, Defendant and Appellant

No. 2258

Supreme Court of Wyoming

April 10, 1945

Rehearing Denied 61 Wyo. 309 at 348.

APPEAL from District Court, Platte County; SAM M. THOMPSON, Judge.

Action by H. C. Havens against William Irvine to recover a real estate broker's commission. Judgment for plaintiff, and defendant appeals.

Judgment reversed with instructions.

BLUME C. J., dissenting.

Reversed.

For the plaintiff and respondent the cause was submitted on the brief of Oscar O. Natwick of Cheyenne, Wyoming and Kline and Kline of Cheyenne, Wyoming, and oral argument by Mr. Natwick and Mr. M. A. Kline.

POINTS OF COUNSEL FOR APPELLANT

The terms of the contract required that a sale for $ 22,000.00 cash be made; if this was not accomplished a commission could not be claimed unless these terms were waived by Irvine, and plaintiff does not claim a waiver of any of the terms of the agreement, or unless it be alleged and shown that he was prevented from full performance by acts of the owners. See Restatement Law of Agency, P. 447; Murphy v. W. & W Livestock Co. 26 Wyo. 455, 187 P. 187, 189 P. 857; Owens v. Mt. States T. & T. Co. 50 Wyo. 331, 63 P. 2d 1006, 1009.

A mere introduction of a prospective purchaser does not satisfy the requirements of a completed sale. It is, at most, only the first step in the chain of events which would necessarily have to follow. See definitions from Words & Phrases Perm. Ed. Vol. 39: "Spot cash sale"; "Cash sale."

The fact that both plaintiff and defendant have stated that the property was listed for sale at $ 22,000.00 cash disposes of this question, not as a question of fact, but as a question of law. Where a listing is made for a cash sale, all of the elements of a sale are necessary to a completion of the transaction. 11 C. J. 25.

In the absence of an express contract to the contrary a broker is not entitled to compensation where the employer in good faith revokes his authority before the broker has earned his commission by producing a purchaser. 8 Am. Juris. 143.

An owner has the right to stand upon the literal terms of his contract, and that the broker is not entitled to a commission unless he has fully complied with his contract within the time of his agency. Owens case, supra. Casper National Bank v. Curry, 51 Wyo. 284, 65 P. 2d 1116.

Before a real estate broker can recover a commission under an ordinary brokerage contract he must show he has either sold the property in question; been the procuring cause in bringing about the sale; or, procured a purchaser who is ready, able and willing to purchase at the stipulated terms upon which he was authorized to sell.

Foley v. Hassey, 55 Wyo. 24, 95 P. 2d 85; Griffin v. Rosenblum, 46 Wyo. 40, 23 P. 2d 348; Frost v. Houx, et al. 15 Wyo. 353, 89 P. 568.

Where the contract of agency is unlimited, no specific time being named therein, and a reasonable time elapses without a sale, the owner may in good faith, without design to avoid payment of commissions, revoke the agency, and may without impropriety afterwards sell and convey to the person with whom the agency had been negotiating. Sibbald v. Bethlehem Iron Co., 83 N.Y. 384, 38 Am. Dec. 441, on page 993.

The burden of proof is on the plaintiff in the first instance to prove that he fulfilled his contract where performance is the ground of recovery. Barios v. Foley, (Cal.) 256 P. 573; Porter v. Hunter (Utah), 207 P. 153; Murphy v. W. & W. Livestock Co., (Wyo.) 189 P. 857, 859.

The evidence of the successful party is to be given every favorable inference which may be reasonable and fairly drawn from such evidence. Griffin v. Rosenblum, 46 Wyo. 40, 23 P. (2) 348; Willis v. Willis, 48 Wyo. 403, 49 P. (2) 670; Branson v. Roelofsz, 52 Wyo. 101, 70 P. 2d 589; Standard Iron Co. of Ind. v. Sullivan, 237 P. 253.

For the defendant and appellant the cause was submitted on the brief and also oral argument of James A. Greenwood of Cheyenne, Wyoming, and W. B. Jones of Wheatland, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT

The appellate court must assume that the evidence in favor of the successful party is true, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may reasonably and fairly be drawn from it. Willis v. Willis, 48 Wyo. 403, 49 P. 2d 670.

It is the province of the court to determine the credibility of the witnesses and the weight to be attached to their testimony in exactly the same sense that the jury should do in the trial of a case. It is at liberty to believe or to disbelieve any witness or witnesses, or any part of a witness' testimony, and, like a jury, may disregard any testimony not considered worthy of belief, although it has not been contradicted, if it considers the testimony unreasonable or inconsistent with facts and circumstances shown by other evidence. 64 C. J. 1209.

If there is substantial evidence in the record to sustain the finding, or if it were made upon evidence conflicting in character, under familiar rules governing appellate court practice, it must stand. The previous decisions of this court have reiterated these principles so often, it is unnecessary to cite them now. Kumor v. Scottish Union and National Insurance Co., 47 Wyo. 174, 33 P. 2d 916.

The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted which will support the conclusion reached by the jury. When two or more inferences can reasonably be deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. Raggio v. Mallory, 76 P. 2d. 660. Perko v. Rock Springs Commercial Co., 37 Wyo. 98, 259 P. 520; Saratoga Land and Investment Co., v. Jensen, 20 Wyo. 323, 123 P. 415; Hunt v. City of Laramie, 26 Wyo. 160, 181 P. 137; Boyle v. Mountford, 39 Wyo. 141, 270 P. 537.

Defendant did not plead revocation in his answer, or any modification whatever of the original contract, but contented himself with denying that such a contract was entered into, or, if entered into, that it was carried out by the plaintiff. Under a general denial the defendant had no right to prove revocation. Mauser v. Hurdle, (Colo.) 140 P. 179. Bradley v. Blandin, (Vt.) 100 A. 920.

If a real estate broker claims a commission for his services, where no sale is actually consummated, then he must prove, by competent evidence, that he produced a purchaser able, ready and willing to buy at the price and upon the terms fixed by the owner. But, where a sale is actually made and the deal closed by the owner himself, then the question of the ability, readiness and willingness of the purchaser to buy is eliminated. And the fact that the owner himself closed the deal will be taken as conclusive that the terms were satisfactory to him. Schlegel v. Fuller, 149 P. 1119. Fitzpatrick v. Underwood, 105 P. 2d. 632.

When the broker has brought the parties together and as a result they conclude a contract, he is not deprived of his right to a commission by the fact that the contract so concluded differs in price or terms from the one he was authorized to negotiate. 12 C. J. S. 196.

TIDBALL, District Judge. RINER, J., concurring. Judge Tidball concurs in RINER's opinion. BLUME, Chief Justice, dissenting.

OPINION

TIDBALL, District Judge.

This is an appeal from a judgment of the District Court of Platte County. The action was for a commission of $ 1,100 and interest alleged to be due plaintiff on account of a sale of defendant's ranch by plaintiff, a licensed real estate broker. The case was tried without a jury, resulting in a judgment for plaintiff as prayed. The only error assigned was that the evidence was insufficient to support the judgment. Such being appellant's claim, under the rule laid down in several cases by this court, we must view the case from the standpoint of plaintiff's evidence, assuming that plaintiff's evidence is true, leaving out of consideration entirely the evidence of defendant in conflict with plaintiff's evidence, and give to plaintiff's evidence every favorable inference which may reasonably and fairly be drawn from it. Willis v. Willis, 48 Wyo. 403, 49 P.2d 670.

Plaintiff's evidence shows that late in March, 1941, defendant, William Irvine, owner of a ranch in Platte County, listed his ranch with plaintiff, H. C. Havens, a licensed real estate broker for sale at $ 22,000 cash. The listing was not exclusive, that is, defendant had the right to sell it himself or let others do so, and no time limit was set on the contract. The listing of the property was made through S.W. McGinley, a salesman employed by plaintiff. The commission to be paid plaintiff if he sold the ranch was five percent, or $ 1,100. McGinley undertook the sale, and through Ward Hildreth, a Torrington real estate broker, a Mr. Von Forell was contacted and the property offered to him for $ 22,000 cash. Von Forell visited the defendant's ranch on May 19th, 1941, in company of McGinley and Hildreth, and again about a week later. On the first visit McGinley told Von Forell the price was $ 22,000 cash. Von Forell looked over the place a time or two when McGinley was not with him as late as July. In June Von Forell asked McGinley to try to get better terms. He was willing to buy the ranch if terms could be secured that he was able to meet. Thereupon, McGinley contacted defendant and procured terms on one-half cash and the balance at six percent. Just how the balance was to be handled is not clear from the evidence. Hildreth testified that the terms were all cash or one-half cash and a short time...