Isaguirre v. Echevarria

• Decision Date: 18 April 1975
• Docket Number: No. 11659,11659
• Citation: 534 P.2d 471,96 Idaho 641
• Parties: Margie ISAGUIRRE, Plaintiff-Respondent, v. Ben ECHEVARRIA, Defendant, and Josefa Echevarria, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 471

534 P.2d 471

96 Idaho 641

Margie ISAGUIRRE, Plaintiff-Respondent, v. Ben ECHEVARRIA, Defendant, and Josefa Echevarria, Defendant-Appellant.

No. 11659.

Supreme Court of Idaho.

April 18, 1975.

Edith Miller Klein, Boise, for defendant-appellant.

Richard B. Eismann, Homedale, for plaintiff-respondent.

DONALDSON, Justice.

This appeal places in issue the determination of the trial court that respondent Margie Isaguirre is entitled to a $1,500.00 real estate broker's commission for her part in the sale of the Echevarrias' Owyhee County ranch. For the reasons set forth below, the decision of the trial court is affirmed.

On January 25, 1971, the appellant, Josefa Echevarria, and her now-deceased husband signed a Receipt and Agreement to Purchase for the purpose of selling their ranch to a Mr. and Mrs. Hardy for $30,000.00. Typed into the appropriate blanks on the document were provisions for a down payment of $5,000.00, monthly payments of $100.00, and annual interest payments. A broker's commission of $1,500.00 was written in ink in the proper blank in a separate part of the agreement form. ¹ The document was not notarized. The respondent real estate broker was, at the time of the agreement, the daughter-in-law of the appellant. Respondent contends that she was orally engaged by the appellant to arrange the sale of the ranch in question. Mrs. Isaguirre placed an ad in a local newspaper and was subsequently contacted by the Hardys. She showed them the land, and later had the document in question prepared.

Testimony at trial indicated that at the time of the signing both the appellant and her husband were ill and elderly. Moreover, both were far from proficient in reading the English language.

Also during the trial, respondent and Mrs. Hardy testified that respondent's husband (at that time) read the entire contract to the appellant in Basque. John, the husband, testified that he did not translate the document to his parents and had in fact been in the barn milking the cows during the signing of the document.

On or about February 4, 1971, the appellant's other son, Pete, after a conversation with the appellant, told Mr. Hardy that the contract was unacceptable to his parents and would therefore have to be rescinded. Hardy then sought and received from respondent a refund of the $500.00 earnest money he had given her. Pete then arranged a second agreement with the Hardys for sale which included $150.00 monthly payments, semi-annual interest payments, and a $5,000.00 down payment, but had no provision for broker commissions. This second agreement was accepted by the Echevarrias as sellers and the Hardys as buyers.

Pete testified that the terms set forth in respondent's agreement were not acceptable to the appellant once they had been explained to her by Pete following the signing of the first agreement. Pete further testified that his efforts and not respondent's newspaper ad, first sparked the Hardys' interest in the ranch.

Appellant was unable to testify at trial due to illness. An affidavit filed in support of a motion for new trial states that she had not agreed to pay a commission, the respondent had already received a large sum from appellant, and respondent had misled appellant as to the terms of the agreement. This was the reason for the rescission of the first agreement with the Hardys.

Respondent subsequently brought this action for the $1,500.00 broker commission.

The trial court found that John, respondent's former husband, had read the contract terms to his parents. The court then concluded as a matter of law that the first Receipt and Agreement to Purchase was a valid enforceable agreement as to the payment of the real estate commission. Judgment was subsequently entered for respondent on July 17, 1973. A motion for new trial was filed July 26, 1973, containing two grounds for the new trial. New counsel filed an amended motion for new trial on November 20, 1973, with three additional grounds. The court did not consider the amended motion because it was not filed within the time for such motions. The court denied on its merits the original motion for new trial.

The primary contention by the appellant as to error by the trial court focuses on the first agreement signed by appellant and the Hardys. The trial court used the commission clause in that agreement to meet the statutory provisions requiring a writing as evidence of such brokerage arrangements. The appellant argues that since the agreement to purchase was both unenforceable ² and rescinded, the commission clause is without effect. Moreover, appellant continues, the deviation between the terms of the first and second agreements indicates that the respondent had not secured a buyer prepared to meet the terms desired by the appellant. By failing to do this, Mrs. Isaguirre did not fulfill her obligation as broker. Because of the provisions of I.C. § 9-508, the general rule in Idaho has been that a real estate broker cannot collect a commission on an oral engagement by the client or on a quantum meruit theory. Brace v. Johnson, 45 Idaho 327, 262 P. 148 (1927); Weatherhead v. Cooney, 32 Idaho 127, 180 P. 760 (1919). The statute reads as follows:

'No contract for the payment of any sum of money or thing of value, as and for a commission or reward for the finding or procuring by one person of a purchaser of real estate of another shall be valid unless the same shall be in writing, signed by the owner of such real estate, or his legal, appointed and duly qualified representative. (1915, ch. 131, § 1, p. 287; compiled and reen. C.L., § 6012; C.S. § 7979; I.C.A., § 16-508.)'

Thus, something beyond an oral contract is needed to support an award of a commission to Mrs. Isaguirre.

This Court faced a similar situation in Homefinders v. Lawrence, 80 Idaho 543, 335 P.2d 893 (1959). In that case the appellants had orally employed the respondent broker to arrange a trade of their acreage for a business property. After the respondent located a party willing to enter such an exchange, the appellant signed an exchange agreement which carried a rider which provided as follows:

'I hereby ratify and confirm the employment of Homefinders Real Estate, real estate broker, to procure a purchaser for my property above described and in consideration of services performed by said broker in negotiating and bringing about the foregoing sale, hereby agree to pay said broker forthwith a commission of $750.00 ($200.00 of which is herenabove receipted for as earnest money deposited) to be paid in mo. installments.'

After the appellant refused both to carry out the exchange and to pay respondent his commission, the respondent brought suit. The situation was discussed by the Court as follows:

'(A)ppellants contend that respondent may not recover a broker's commission since it did not have a written listing contract, but only oral employment, to find a purchaser of appellants' property, citing I.C., 9-508, which reads: (See above.)

'Here, however, respondent's first cause of action is not dependent upon any contract meeting the requirements of I.C., § 9-508, obligating appellants to pay for respondent's resvices to be rendered in finding a purchaser; rather, respondent's action is predicated upon the promise of appellant John R. Lawrence to pay a broker's commission to respondent for its services rendered, evidenced by the rider hereinbefore set out, made after rendition of those services. Moreover, the later written instrument is presumptive evidence of a valid consideration, I.C., § 29-103, and the burden rested upon appellants to avoid the instrument, I.C., § 29-104.

'Appellant Lawrence, by such written instrument, agreed to pay for respondent's services already rendered; it is unrelated to any oral contract to pay a commission for services yet to be performed. Simply stated, the action is predicated on the theory of respondent's rendition to appellants of past valuable services,-not services to be performed in the future,-and the latter's written promise to pay therefor. Such a written acknowledgment of services and promise to pay therefor are held to satisfy the requirement of the Statute of Frauds of like or similar import as I.C. § 9-508. (Citations omitted.)' 80 Idaho 543, 548-9, 335 P.2d 893, 896.

The primary issue, then, was whether the prior services provided sufficient consideration to support the acknowledgement of the obligation.

In finding sufficient consideration, this Court in Homefinders v. Lawrence, supra, utilized the following quotation from the Washington Supreme Court of Muir v. Kane, 55 Wash. 131, 104 P. 153 (1909) "The appellants contend that the writing relied upon by the respondent is insufficient under the statute; that it is not an agreement authorizing the respondent to sell the real property described for compensation or commission, nor does it authorize or employ the respondent to sell real estate at all. * * * It is clear that this writing was not intended as an agreement authorizing the respondent to sell the real property mentioned. In fact it was executed after that service had been performed, and is an agreement in writing to pay a fixed sum for a past service, not a service to be performed in the future. The question for determination is its validity as a promise to pay for a past service. Looking to the instrument itself, there is nothing on its face that in any manner impugns its validity. It is a direct promise to pay a fixed sum of money for services rendered." 80 Idaho 543, 550, 335 P.2d 893, 897.

In any...