Kaus v. Bideaux, s. 82-2376
| Decision Date | 17 June 1983 |
| Docket Number | Nos. 82-2376,82-2413,s. 82-2376 |
| Parties | John KAUS, d/b/a John Kaus Real Estate Service and Robert Thompson, Appellees, v. Alex BIDEAUX and Mary Bideaux, Appellants. John KAUS, d/b/a John Kaus Real Estate Service and Robert Thompson, Appellants, v. Alex BIDEAUX and Mary Bideaux, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Luckey, Sipple & Hansen, Mark M. Sipple, Columbus, Neb., for appellants.
Edward D. Hotz, Hotz, Kizer & Jahn, P.C., Omaha, Neb., for John Kaus, d/b/a John Kaus Real Estate Service and Robert Thompson, Appellees.
Before HEANEY, Circuit Judge, and HENLEY and BAILEY BROWN, * Senior Circuit Judges.
This diversity action involves the efforts of two real estate brokers to recover the balance of a commission allegedly earned through their arrangements for the sale of certain commercial property. Defendants Alex and Mary Bideaux seek reversal of a judgment entered in favor of the plaintiff-brokers, John Kaus d/b/a Kaus Real Estate Service and Robert H. Thompson; plaintiffs in turn contest the district court's refusal to award prejudgment interest in this case.
The facts from which this action arises are essentially undisputed. In May of 1978 the defendants, Nebraska residents, entered into an exclusive listing agreement with plaintiffs, real estate brokers based in Iowa, for the sale of defendants' bowling alley and lounge located in Schuyler, Nebraska. The agreement specified the terms for sale, including a commission in the amount of 10% of the sales price, and was to be effective for a term of six months.
Plaintiffs were unable to sell the property during the term of the listing agreement, and that contract expired, according to its terms, on November 11, 1978. After that date, no additional written listing agreements were entered into between the parties. Following the expiration of the original agreement, however, the Bideauxs directed plaintiffs to continue their efforts to sell the property. The parties verbally agreed that the commission to be paid in the event the property was sold would be the same as that recited in the expired agreement.
From November of 1978 through September of 1980, plaintiffs showed the bowling alley to several prospective purchasers. In May of 1980 they began negotiating with Mr. and Mrs. Joseph Prazak concerning the purchase of the property. On October 9, 1980 the Prazaks and the defendants executed a purchase agreement reciting a total price, excluding inventory, of $285,000.00. Pursuant to the terms of this agreement, the Prazaks made a payment of $5,000.00 as earnest money; this sum was placed in an escrow account and subsequently applied to the commission allegedly due plaintiffs.
The sales transaction between defendants and the Prazaks was closed on December 1, 1980, with the terms of sale set out in a land contract executed by those parties on the same date. On December 9, 1980 defendants issued a check in the amount of $10,000.00 to plaintiffs as partial payment of the commission due. This payment left a remaining balance of $13,500.00. During the next two months, the parties apparently had one or more conversations concerning the time for payment of the outstanding balance.
In the meantime, the Prazaks defaulted on the land contract after having made five monthly payments. Defendants thereafter initiated a foreclosure action to retake possession of the property, and also refused to pay the remainder of the commission. As a result, plaintiffs then commenced this diversity action to recover the balance of the commission, along with prejudgment interest, as provided by Nebraska law. After trial to the bench, the district court entered judgment in favor of the plaintiffs in the amount of $13,500.00, the unpaid portion of the commission, but refused to award prejudgment interest. This appeal and cross-appeal followed.
Defendants' primary contention is that the district court erred in concluding that Neb.Rev.Stat. Sec. 36-107, which requires that sales...
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...controversy exists as to the plaintiff's right to recover and it is possible to compute with exactness the amount owed. Kaus v. Bideaux, 709 F.2d 1221 (8th Cir.1983). Here, the evidence shows that the amount FAL claimed it was entitled to recover with respect to the Burwick project prior to......
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