Kerry-Rand and Associates v. Peddicord

• Decision Date: 02 December 1983
• Docket Number: No. 82-697,KERRY-RAND,82-697
• Citation: 215 Neb. 798,340 N.W.2d 880
• Court: Nebraska Supreme Court
• Parties: AND ASSOCIATES, Appellee, v. Tom PEDDICORD, Appellant.

Page 880

340 N.W.2d 880

215 Neb. 798

KERRY-RAND AND ASSOCIATES, Appellee, v. Tom PEDDICORD, Appellant.

No. 82-697.

Supreme Court of Nebraska.

Dec. 2, 1983.

Syllabus by the Court

1. Summary Judgment: Pleadings. When the allegations of the pleadings have been pierced by a movant for summary judgment and resistance to the motion fails to show that a genuine issue of facts exists, summary judgment should be granted.

2. Contracts: Consideration. There is sufficient consideration for a promise if there is any benefit to the promisor or any detriment to the promisee.

3. Brokers: Contracts. Generally, a broker is entitled to a commission on a sale by the principal, where, in addition to language indicating an exclusive agency, there is a special contractual provision giving a right to a commission on a sale by the owner.

Michael V. Smith of Smith, King & Waite, Gordon, for appellant.

John H. Cotton of Gaines, Otis, Haggart, Mullen & Carta, Omaha, for appellee.

WHITE, and CAPORALE, JJ., BRODKEY, J., Retired, BLUE, District Judge, and COLWELL, District Judge, Retired.

COLWELL, District Judge, Retired.

This is a suit by Kerry-Rand and Associates, plaintiff, to recover a real estate broker's commission from Tom Peddicord, defendant. Summary judgment was entered in favor of plaintiff for $99,925.73. Defendant appeals. We affirm.

The petition alleges the parties executed an exclusive "Farm Listing Contract" (Listing) on April 23, 1981, for the sale of a ranch and that defendant sold the ranch himself during the term of the Listing, which obligated him to pay a broker's commission under the express "fees" terms of the Listing. Defendant answered by general denial, and denied that plaintiff either found a buyer or expended any reasonable effort to find a buyer, or that defendant sold the ranch to anyone due to plaintiff's efforts. After discovery was completed both parties filed motions for summary judgment. Defendant did not appear at the hearing. Both parties submitted their motions upon the record made by plaintiff, including depositions of material witnesses.

Peddicord was the owner of Cross Five Ranch located in Cherry County, Nebraska, and Bennett County, South Dakota. About 8,000 Nebraska acres are involved here. Plaintiff is a Nebraska corporation wholly owned by Randy Wobig, a Nebraska licensed real estate broker, Norfolk, Nebraska. Suit is brought under Neb.Rev.Stat. § 81-885.06 (Reissue 1981).

There is no real dispute of these facts. On April 23, 1981, plaintiff and defendant executed a printed form farm listing contract. The first two paragraphs are material here:

"IN CONSIDERATION of your agreement to list, and to offer for sale the property hereinafter described and to use your efforts to find a purchaser, I (we) hereby give you the sole and exclusive right until November 1, 1981, to sell ...

"See Attached Addendum 9,954 acres more or less ... for the sum of Two Million Four Hundred Eighty Eight Thousand Five Hundred & no/100 ($2,488,500.00) dollars ...."

"I (We) agree to pay you for professional services a cash fee of 5% of the gross sale price, or $__________, said fee to be payable on the happening of any one or more of the following events, to wit:

"If a sale is made, or a purchaser found, who is ready, willing and able to purchase the property before the expiration of this listing, by you, myself, or any other person, at the above price and terms I (we) may agree to accept, or if this agreement is revoked or violated by me, you, myself, or any other person, at the above price and terms I (we) may agree to accept ... or if within 30 days after the expiration of this listing, unless relisted by another agent, I (we) make a sale of said premises to anyone due to your efforts or advertising done under this listing." (Emphasis supplied.)

In early 1981 both Marvin Metzger, a neighboring rancher, and Richard Satterlee, a real estate broker in Martin, South Dakota, discussed the sale of the ranch with defendant. In June 1981 Metzger, acting through Satterlee, made an offer to buy, which was refused by defendant. A second offer was accepted and a written contract executed on July 21, 1981, providing for defendant's sale of the ranch to Cross Heart Ranch Company and Robert A. Metzger for $2,194,000; vendees made a $100,000 downpayment; possession was to be given about July 26, 1981; final settlement was to be November 15, 1981. The contract provided that a $75,000 commission was to be paid by seller to Richard Satterlee, listing broker, and Thomas Metzger, selling broker; their Nebraska licensing qualifications are not shown. Vendee Robert Metzger, son of Marvin Metzger, later assigned his interest to Cross Heart Ranch Company. The contract was performed on November 27, 1981, when defendant conveyed the Nebraska land for $1,998,514.06. The $75,000 commission was paid.

During the period from April 23 to November 1, 1981, no agent of plaintiff brought a prospective purchaser to the ranch. Upon execution of the Listing, plaintiff included the ranch in its inventory of land for sale available to its agents; advertising data was prepared, followed by advertising in newspapers, professional publications, and other shoppers' media. The first advertising was on May 4, 1981; the next began October 2, 1981. Agents of plaintiff also circulated brochures at seminars attended in four major cities.

First, defendant claims as error that the Listing agreement alone entitled plaintiff to a commission as a matter of law; he argues, as indicated in his answer, that plaintiff was required to make some reasonable effort to find a buyer.

In Chapman Co. v. Western Neb. Broadcasting, 213 Neb. 322, 327, 329 N.W.2d 107, 110 (1983), we said: "[B]efore a broker may be entitled to a commission, the broker must ordinarily be able to establish at least some causal connection between the broker's actions and efforts in regard to the listed property and the ultimate sale made to the purchaser under an extension contract of the type involved herein." That case is distinguishable. There, a sale was made after the listing expired, and the issue was the application of an "extension clause" and the question whether the broker "solicited" the buyer. Here, the issue relates to a special provision in the Listing purporting to obligate the owner to pay a broker's commission if the owner sells the land during the Listing term.

" 'There is a sufficient consideration for a promise if there is any benefit to the promisor or any detriment to the promisee.' " Omaha Nat. Bank v. Goddard Realty, Inc., 210 Neb. 604, 609, 316 N.W.2d 306, 310 (1982). Defendant received the benefit of the exclusive services of a licensed broker, and plaintiff promised to use its best efforts to find a buyer. In addition, plaintiff commenced performance by preparing advertising and brochures, and it published at least one ad prior to the alleged sale. There was mutuality of consideration for the Listing. Next, is the "fees" agreement in the Listing enforceable?

The general rule is stated in 12 C.J.S. Brokers § 175 at 556 (1980): "A broker is entitled to a commission on a sale by the principal, where, in addition to language indicating an exclusive agency, there is a special contractual provision giving a right to a commission on a sale by the owner." See, also, 12 Am.Jur.2d Brokers § 227 (1964); Annot., 88 A.L.R.2d 936, 966 (1963); American Property Services v. Barringer, 256...