John Wilson Enterprises, Ltd. v. Carrier Terminal Service, Inc., 6990

• Decision Date: 23 April 1981
• Docket Number: No. 6990,6990
• Citation: 2 Haw.App. 128,627 P.2d 294
• Parties: JOHN WILSON ENTERPRISES, LTD., dba Pali Kai Realtors, Plaintiff-Appellee, v. CARRIER TERMINAL SERVICE, INC. Jed Henrie and Harold R. Tate, Defendants-Appellants.
• Court: Hawaii Court of Appeals

Page 294

627 P.2d 294

2 Haw.App. 128

JOHN WILSON ENTERPRISES, LTD., dba Pali Kai Realtors Plaintiff-Appellee, v. CARRIER TERMINAL SERVICE, INC. Jed Henrie and Harold R Tate, Defendants-Appellants.

No. 6990.

Intermediate Court of Appeals of Hawai'i.

April 23, 1981.

Syllabus by the Court

1. A real estate broker is entitled to his commission where the commission agreement is in writing, he procures a ready, willing and able purchaser and the seller, after accepting the contract, disavows the same.

2. Where the secretary-treasurer who was also one of the three directors of a small, closely held corporation and to whom the broker's call was referred by the corporation, orally indicated acceptance on behalf of the corporation of an offer for the purchase of the corporation's property and the corporation delayed from August 23 to November 4 in disaffirming the transaction, even though the sale papers had been promptly forwarded to it, it was not clearly erroneous to hold that the secretary-treasurer had authority to indicate the corporation's acceptance of the offer.

3. Where after the secretary-treasurer and director of a small, closely held corporation orally indicated acceptance of an offer for the purchase of its property and the broker and purchaser, in reliance thereon, opened escrow, deposited monies and incurred expenses while the corporation delayed from August 23 to November 4 to indicate any disaffirmance of the contract, it was not clearly erroneous to hold that the corporation was estopped from disaffirming the contract.

4. Where neither the questions presented or the points relied upon contend that the findings of fact and conclusions of law were inadequate to support a judgment against the individual defendants, the argument would not be considered on appeal.

Nelson Christensen, Lahaina, Maui, for defendants-appellants.

Everett Walton (B. Martin Luna on the brief), Ueoka & Luna, Wailuku, Maui, for plaintiff-appellee.

Before HAYASHI, C. J., and PADGETT and BURNS, JJ.

PADGETT, Judge.

This is an appeal from a judgment below for plaintiff-appellee, a real estate brokerage firm, for real estate commissions, interest and expenses against defendants-appellants, the owner of a condominium apartment which it had listed with appellee for sale, and two of its officers.

The question presented is whether there was sufficient evidence to support the lower court's findings of fact (and the conclusions of law flowing therefrom) that appellee had procured a ready, willing and able buyer under the listing contract. We affirm.

The corporate appellant, Carrier, was a closely held Utah corporation. The Appellant Tate was its president and Appellant Henrie was its secretary-treasurer. Both were directors on its three-man board. Carrier owned apartment A-1-1 in the Puamana condominium at Lahaina, Maui. On August 19, 1974, after some preliminary exchanges it listed the apartment for sale at a 6% commission with appellee by a written listing agreement signed by Appellee Wilson. The agreement contained the phrase "Pers intv? L. O." which the court below found to be ambiguous. On August 23, 1974, appellee procured a prospective buyer, Elizabeth Pelinka, who executed a DROA. Because the buyer wanted to know immediately whether the offer was accepted, Wilson, the principal of appellee in the presence of Ricketts, a salesperson, telephoned Carrier and asked for Tate. He was informed that Tate was not available and was referred to Henrie with whom he had not previously dealt. According to the testimony, Henrie, on behalf of Carrier, accepted the offer (which included the inventory of furnishings in the offering price) and said he would confirm by wire. Wilson immediately wrote to Carrier, transmitting the offer and the purchaser proceeded to deposit $25,000 in escrow by September 4 and the full purchase price by October 11, 1974. Appellants remained silent until November 4, 1974 when by letter Carrier purported, without specifying reasons, to reject the offer and cancel the listing contract.

Appellants contend that the inventory of furnishings was not intended to be sold; that the offer was therefore not in accord with the listing contract, and that the court below could not and did not find that Henrie had authority, express, implied or apparent, to accept the offer on Carrier's behalf.

It is axiomatic that where the listing contract, as in this case, requires only that the broker produce a ready, willing and able purchaser at the terms agreed upon, the broker's fee has been earned when such a purchaser is produced regardless of whether the principal accepts the offer. Ikeoka v. Kong, 47 Haw. 220, 386 P.2d 855 (1963); 12 Am.Jur.2d Brokers § 183 (1964).

The court below held that the listing contract was ambiguous as to the inclusion of the inventory at the listed price. It found that Henrie orally accepted the offer on behalf of...