Larson v. Syverson
| Citation | 166 N.W.2d 424,84 S.D. 31 |
| Decision Date | 30 August 1966 |
| Docket Number | No. 10528,10528 |
| Parties | Warren L. LARSON, d/b/a Larson Realty, Plaintiff and Respondent, v. Ray G. SYVERSON, Sr., Defendant and Appellant. . April, 1, 1969. May, Boe & Johnson and Gale E. Fisher, Sioux Falls, for defendant and appellant. Lawrence L. Piersol, of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiff and respondent. HOMEYER, Judge. This is an action to recover a real estate broker's commission alleged to be due plaintiff, Warren L. Larson, for procuring a purchaser for two unimproved lots within the city limits of Sioux Falls formerly owned by the defendant, Ray G. Syverson, Sr. Trial to the court resulted in a judgment for plaintiff in the amount of $1500 and the defendant appeals. The principal assignment of error and the only one requiring discussion challenges the sufficiency of the evidence to support the court's findings. Citations are unnecessary to support the elementary rule that the credibility of the witnesses and weight to be accorded their testimony is for the trial court and we accept that version of the evidence including any reasonable inferences therefrom which are favorable to the trial court's determination. As a reviewing court we will disturb the findings of fact only when it appears that they are contrary to a clear preponderance of the evidence. We approach the question presented in that perspective. On or about |
| Court | South Dakota Supreme Court |
May, Boe & Johnson and Gale E. Fisher, Sioux Falls, for defendant and appellant.
Lawrence L. Piersol, of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiff and respondent.
This is an action to recover a real estate broker's commission alleged to be due plaintiff, Warren L. Larson, for procuring a purchaser for two unimproved lots within the city limits of Sioux Falls formerly owned by the defendant, Ray G. Syverson, Sr. Trial to the court resulted in a judgment for plaintiff in the amount of $1500 and the defendant appeals.
The principal assignment of error and the only one requiring discussion challenges the sufficiency of the evidence to support the court's findings. Citations are unnecessary to support the elementary rule that the credibility of the witnesses and weight to be accorded their testimony is for the trial court and we accept that version of the evidence including any reasonable inferences therefrom which are favorable to the trial court's determination. As a reviewing court we will disturb the findings of fact only when it appears that they are contrary to a clear preponderance of the evidence. We approach the question presented in that perspective.
On or about August 30, 1966, Syverson listed the lots and some other real estate with Larson for the purpose of finding a buyer. The parties concede there was no exclusive listing. The sale price of the individual lots was shown. The price of ont lot was $20,000 and the other $10,000. Between that date and March 27, 1967, Larson showed the lots on several different occasions to S. F. Pecaut of Sioux City, Iowa. Pecaut was an officer and the principal stockholder of Pecaut Equipment Company and Pecant Realty Company, both family corporations, with businesses at Sioux City and Sioux Falls.
On March 27th Larson by telephone discussed the purchase of the lots with Pecaut who first offered $25,000, but when Larson told him the minimum price was $30,000, he agreed to pay that sum. Larson and Pecaut had had a number of prior business dealings and Pecaut authorized Larson to sign such documents and advance such sums of money as might be necessary to consummate the transaction.
On the same date, Iris Boyd, an employee of Larson who had procured the listing, telephoned Syverson and asked if the lots were still for sale. Syverson said that they were and she was told that he had sold three other lots contained in the listing and she noted the lots sold and the name of the purchaser on a plat attached to the listing. Syverson also stated that he preferred to sell the two lots as a unit. Still on the same date Larson went to Syverson's place of business with a written offer on one of Larson's 'Earnest Money Contract' forms which proposed that Pecaut would purchase the lots for $30,000 in cash. Syverson read the proposal and then stated that he wanted $10,000 down and the rest 'on amortizing'. Larson said 'Well, possibly that can be arranged.'
Larson returned to his office and in a telephone conversation confirmed that Pecaut would deal for the lots on the new terms. He prepared a second 'Earnest Money Contract' dated March 28, 1967 and it was shown to Syverson at about 2 p.m. on that day. Syverson at that time informed Larson that he was attempting to sell the lots to another party and that he would call him thereon the next day. On March 29th Larson accompanied by Mrs. Boyd again called on Syverson and he again stated he wanted more time before signing and he would call the following day. On March 30th Syverson informed Larson in a telephone coversation that 'We've decided that we're going to sell these (lots) to somebody else.'
The record reveals that a check for $10,000 dated March 29, 1967, marked as a down payment for the lots was issued by H. S. Price to Syverson and not cashed. A second check for $8700 dated March 30, 1967 and deposited on April 3, 1967, in lieu thereof, passed between the same parties and a Contract for Deed dated April 1, 1967 and recorded on April 11, 1967 was executed. The sale consideration was shown as $30,000 with a down payment of $8700. There was testimony by Syverson that he and his son had been negotiating with Price on the sale of the lots before the Pecaut offer was presented, but it is undisputed that the sale had not been 'firmed up' or completed before Mrs. Boyd's telephone call and Larson's presentation of Pecaut's proposal to buy for the listed price of $30,000 in cash.
A broker effecting a sale of property can recover a commission only by...
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