Leet v. Joder

• Decision Date: 02 April 1956
• Docket Number: Nos. 2718,2719,s. 2718
• Parties: Edmund LEET, Plaintiff and Respondent, v. Glen H. JODER, Defendant and Appellant. Edmund LEET, Plaintiff and Appellant, v. Glen H. JODER, Defendant and Respondent.
• Court: Wyoming Supreme Court

Page 733

295 P.2d 733

75 Wyo. 225

Edmund LEET, Plaintiff and Respondent, v. Glen H. JODER, Defendant and Appellant.

Edmund LEET, Plaintiff and Appellant, v. Glen H. JODER, Defendant and Respondent.

Nos. 2718, 2719.

Supreme Court of Wyoming.

April 2, 1956.

Rehearing Denied June 11, 1956.

Greenwood, Ferrall & Bloomfield, Cheyenne, for Joder.

William G. Watt, Wheatland, for Leet.

PARKER, Justice.

Both defendant and plaintiff have appealed from the judgment in this case. The appeals where discussed and presented as two cases in the briefs but as one in oral argument. They will be considered in our discussion as separate phases of the same case.

The facts as relevant in the appeals may be summarized as follows: On September 22, 1950, plaintiff, Edmund Leet, a Wheatland real estate dealer, wrote a letter to defendant, Glen H. Joder, enclosing the following instrument:

'Sept. 22 1950

'To Edmund Leet

Wheatland, Wyoming

'In consideration of your listing for sale on your books and undertaking to find a purchaser for the real estate described herein, I hereby appoint you my exclusive, not excepting myself, agent to make sale of the real property described as

The Joder Farm, consisting of 656.84 acers (sic) more or less.

located in Section 36, Twp 24

Range 68 and also in Section 1, Twp. 23, Range 68. Platte County, Wyo.

for the price of $32000.00 upon the following terms:

$5000.00 cash, balance of $27000.00 secured by a mortgage thereon or contract of sale payable $2000.00 and interest at 5% on a yearly basis for five years, and the balance due the sixth year. Purchaser is to pay all taxes and irrigation water assessments. for the year 1951 on following years. and you are hereby authorized to accept a deposit to be applied on the purchase price, and to execute a binding contract of sale on my behalf.

'I agree to pay you, my said agent, a commission of five percent on the sale price, if a sale is made either by myself or yourself during the life of this contract, and to convey said property to the purchaser by a good and sufficient deed, clear of encumbrance. I also agree to furnish a satisfactory abstract of title to date, if said property is sold or exchanged by the owner within 90 days after expiration of this contract to any person with whom said Edmund Leet negotiated with in respect to a sale during the life thereof, or if the property is withdrawn from sale by me during the term of this contract I agree to pay Edmund Leet a commission of five percent on the sale price.

'This contract to continue until and including Dec. 24 1950 and thereafter until terminated by giving unto you, my said exclusive agent, five days notice in writing.

/s/ Glen H Joder

Cheyenne, Wyo.'

Plaintiff's letter read in part:

'I am enclosing the sale listing agreement for your signature. I have already advised my correspondent in Denver and also Scotts Bluff about the property as I wanted to get the sales work started without delay, however I must have the agreement by return mail.

'Doctor, I believe that I can place this property for you at $32000.00 Will get all the cash down possible for you, but terms will help a lot in making a sale. You will note the terms as listed on the form are only for the purpose of getting going. When I can get a real interested party, circumstances in his particular case will likely require a change in terms.

'Likely you will not get this before Monday, as this is Friday evening.

'In all my life I never knew of a time when real estate moved so readily. I am sure you could never do better than now. As you said you cannot give the place the attention you should, so by selling the venture will turn out to have been a very good investment anyway.

'Let me have the listing by return mail.'

On September 27, 1950, defendant complied, returning the signed instrument to plaintiff with the following letter:

'I am enclosing the original copy of the sales agreement on the Wheatland farm which you sent to me. I realize that the terms of the sale will in all probability be different than you have them listed, but I think you should keep in mind that the amount of the down payment should be higher than you show it. If it became necessary to accept only $5000.00 down then I would want to be very sure of the contracting parties before I could agree to sell on that basis. I merely emphasize that point here so there will not be any misunderstanding about it.

'I assume that you intended for me to keep the duplicate copy of the agreement in my files. More power to you and I hope that you can get something done in the near future.'

Plaintiff, according to his testimony, thereafter advertised the property, contacted other real estate dealers and possible buyers, and maintained communication with defendant until January 1951 when defendant with the knowledge of plaintiff began negotiations with one Jacob Sinner culminating in the sale of the farm to him on February 24, 1951, for $32,000. Plaintiff in his suit sought to collect a commission of 5 percent on the sale price in accordance with the statement in the listing plus interest and costs. In additional causes of action he sought $44.52 expenses relating to release and abstracts and $75 for services in procuring a loan for defendant. Defendant in his answer admitted that he signed the listing, that on February 24, 1954, he entered into an agreement with Jacob Sinner to sell the farm for $32,000, and said that the sale price was later modified and reduced to $20,000. (This statement is somewhat clarified by Joder's admission on cross-examination that Sinner assumed and agreed to pay a mortgage on the property of $9,975 and assigned a mortgage on some Washington real property to Joder.) Defendant denied generally certain allegations and contentions of the plaintiff but made no substantial contradiction to the plaintiff's claims as above outlined; and in the jury trial of the cause, he relied for his defense essentially upon the non-existence of any contract between the parties, insisting that plaintiff had no connection with the sale and that the listing, letters, and other negotiations between the parties were all of a preliminary nature, without consideration, and culminated in no contractual relationship between the parties.

The jury found for plaintiff in the sum of $1,600. From a judgment based on the verdict, defendant has appealed, insisting that he owes no amounts; and plaintiff has simultaneously appealed, arguing that defendant owes not only the $1,600 commission but also interest on that amount from the date of the sale of the property.

Case No. 2718

We shall consider first defendant's specifications of error on the ground that (a) the judgment is contrary to law, (b) the judgment is contrary to the evidence, and (c) the judgment is not supported by any substantial evidence.

Defendant's position in this court is that there was no agreement or contract between the parties, that everything which occurred between them was in the nature of preliminary negotiations. He contends that Leet did not produce a buyer and that evidence relating to his efforts to sell the farm was improperly received, while plaintiff responds that there was an exclusive brokerage fully effective on February 21, 1951, for two reasons:

(a) There was no notice of termination.

(b) In January 1951 defendant urged plaintiff to continue trying to sell the property.

Inasmuch as few of the cases and authorities cited by counsel for either plaintiff or defendant pertain directly to the points here in issue, it will be well to bear in mind that analogies are helpful only insofar as they are applicable. In that respect, no decision determines the law, except as it relates to the specific facts before the court.

Defendant cites as factually similar to the case at bar Stevens v. Brimmer, 35 Wyo. 452, 251 P. 1, 49 A.L.R. 919, in which preliminary negotiations were held by the court to be insufficient to constitute an agreement. That case deals with a situation in which there was an exchange of letters but no instrument relied upon as a contract. The fact of there being no instrument in the Stevens v. Brimmer case distinguishes it from the one at bar and renders it of little assistance.

Defendant calls attention to Diamond Cattle Co. v. Clark, 52 Wyo. 265, 74 P.2d 857, 867, 116 A.L.R. 912, as presenting a situation in which the actions of the parties were held to be merely preliminary negotiations. An examination of that case shows that there a prospective purchaser had an option for the signing of a contract with a provision for forfeiture of earnest money if he did not sign. The opinion in the portion quoted by defendant's brief is interesting:

'* * * The transaction, so far as Dobson was concerned, was probably no more than an agreement to sign a contract to purchase, or to forfeit the $100 earnest money. It might be described as an option for which the earnest money was the consideration. * * *'

This remark by the court epitomizes the view which a careful reading of the case suggests, i. e., it is so different from the instant situation that it is wholly inapplicable and unconvincing.

Defendant relies upon Hartford v. McGillicuddy, 103 Me. 224, 68 A. 860, 862, 16 L.R.A.,N.S., 431, 12 Ann.Cas. 1083, as authority for the rule that 'in the absence of definite agreed terms of sale there is no contract.' At first consideration, it might seem that this case has some application to the present problem; but on analysis we note its facts and find that it is an action of assumpsit by a real estate agent for a percentage of the sale price, plaintiff claiming that he procured a customer on the authorized terms. Plaintiff-agent was granted a judgment for his commission; and this judgment was affirmed on appeal, the court stating:

'The second point raised by the defendant is that the evidence does not sustain the finding of the jury that the plaintiff procured a purchaser for the land in 1906 for...