Kirby, Inc. v. Weiler

• Decision Date: 21 April 1971
• Docket Number: No. 1119-A,1119-A
• Citation: 108 R.I. 423,276 A.2d 285
• Parties: KIRBY, INC. v. James B. WEILER et al. ppeal.
• Court: Rhode Island Supreme Court

Page 285

276 A.2d 285

108 R.I. 423

KIRBY, INC. v. James B. WEILER et al.

No. 1119-Appeal.

Supreme Court of Rhode Island.

April 21, 1971.

Corcoran, Peckham & Hayes, Joseph T. Houlihan, Newport, for plaintiff

Sheffield & Harvey, Newport, Brian G. Bardorf, Newport, for James B. Weiler and Rana W. Weiler.

Umsted & Going, Joseph B. Going, Newport, for impleaded defendant, Carey & Richmond, Inc.

OPINION

PAOLINO, Justice.

The plaintiff brought this complaint against the defendants James B. Weiler and Rana W. Weiler to recover a commission for the sale of certain property owned by the Weilers. The Weilers ¹ filed an answer which contained three defenses. The first is a general denial; the second sets up the statute of frauds; and in their third they implead the defendant Carey & Richmond, Inc. ²

The defendants and the impleaded defendant each filed a motion for summary judgment under Super.R.Civ.P. 56 on the ground that there was no genuine issue as to any material fact and that defendants were entitled to judgment as matter of law. After considering the pleadings and the supporting and opposing affidavits, the trial justice granted the motions. The case is before this court on the plaintiff's appeal from the judgment granting the motions for summary judgment.

In the resolution of this question, Rule 56(c) requires that the pleadings, as stated, be examined in order to ascertain what were the issues, and thereafter the affidavits, admissions, answers to interrogatories and other similar matters be considered to determine whether those issues were genuine and material. Slefkin v. Tarkomian, 103 R.I. 495, 238 A.2d 742. 3 Barron & Holtzoff, Federal Practice and Procedure, § 1236 at 158. If there existed a genuine issue of fact, then it was error to grant these motions. On the other hand, if the record disclosed no genuine issue as to any material fact, it was the duty of the trial justice to grant the motions, if in accord with the applicable law. In passing on these motions the trial justice was obliged to consider the affidavits and pleadings in the light most favorable to plaintiff. Hodge v. Osteopathic General Hospital, R.I., 265 A.2d 733. On appeal this court is bound by the same rules. Hodge v. Osteopathic General Hospital, supra.

With these rules in mind, we address ourselves to the facts of this case. In July 1967, plaintiff, a real estate broker in Newport, was requested by a Mrs. Kenneth Shaw Safe to look for a house for her daughter, Mrs. Richard S. Loebs. In August 1967 defendants listed property owned by them for sale with plaintiff. This listing was in writing and was signed. During the month of August 1967, plaintiff examined the property and informed defendants that Mrs. Loebs was a potential prospect. A short time later the property was shown to Mrs. Safe, who told defendants she was acting as an agent for her daughter, and on September 22, 1967, plaintiff sent a letter to Mrs. Loebs which contained a full description of the property. However, by letter dated September 30, 1967, Mrs. Loebs informed plaintiff that the property was ideal except for price and that it was obviously too expensive for her. In the same letter she asked plaintiff to let her know if something else came on the market below $70,000 or $80,000.

Approximately four months later, in January 1968, Mrs. Loebs again wrote to plaintiff and informed plaintiff that she was not interested in buying any property in Newport at that time. She wrote that her husband was going to be assigned to duty in Washington, D.C., and that they would probably be buying a new house there.

In April 1968 defendants decided not to sell their property. They removed the same from the market and notified all brokers to that effect. Also in 1968, Mrs. Loebs returned to Newport. Since her mother had died, Mrs. Loebs took over the lease of her mother's Newport apartment. She spent part of the summer of 1968 in the Newport apartment and decided that she would like to buy something in the Newport area. In August 1968 she spoke to plaintiff about the Weiler property. The plaintiff called Mrs. Weiler to make an appointment and was told by her that she had taken the property off the market. The plaintiff informed Mrs. Loebs that the Weiler property was not for sale, that it was off the market, and that it was impossible to inspect it.

Mrs. Loebs subsequently spoke to Mr. Richmond of Carey & Richmond, Inc., who also told her that the Weiler property was not for sale. Mr. Richmond, did, however, arrange for her to inspect the property, and in August 1968 she was shown the property. During the time that Carey & Richmond, Inc. showed the property to Mrs. Loebs, it was made clear that the property was not for sale, and Mrs. Loebs continued to look at other properties.

In any event, in March 1969, Mrs. Loebs asked Mr. Richmond to submit an offer of $125,000 for the Weiler property. He submitted this offer and on March 14, 1969, defendants accepted Mrs. Loebs' offer. On June 2, 1969, defendants conveyed the property to Mr. and Mrs. Loebs.

We have indulged in a chronological, detailed discussion of the factual background of this case because we considered it necessary for meaningful consideration of the trial justice's decision to grant summary judgment. We now address ourselves to the applicable law.

In discussing the circumstances under which a broker is entitled to a commission, this court said in Gettler v. Caffier, 92 R.I. 19 at 22, 165 A.2d 730 at 732:

'It is the well-settled law of this state that when a broker is the effective agent in bringing about a sale or, stated otherwise, if he is the procuring cause, that is, a sale results from his efforts or negotiations, he is entitled to a commission even though the sale actually was accomplished through other persons. (cites omitted) That such a broker was the effective agent, or the procuring cause, may be established by showing that he was the first broker to interest the prospective purchaser in...