Lindsay Realty Corp. v. Bellina

• Decision Date: 09 October 1975
• Docket Number: No. 7018,7018
• Citation: 320 So.2d 572
• Parties: LINDSAY REALTY CORPORATION v. Dr. Joseph H. BELLINA et al.
• Court: Court of Appeal of Louisiana — District of US

Page 572

320 So.2d 572

LINDSAY REALTY CORPORATION v. Dr. Joseph H. BELLINA et al.

No. 7018.

Court of Appeal of Louisiana, Fourth Circuit.

Oct. 9, 1975.

Rehearing Denied Nov. 11, 1975.

Lee C. Grevemberg, New Orleans, for plaintiff-appellant.

Bronfin, Heller, Feldman & Steinberg, Fred Bronfin, New Orleans, for defendants-appellees.

Before SAMUEL, GULOTTA and BEER, JJ.

GULOTTA, Judge.

This is a suit by a realtor against sellers, owners in indivision of real property, for a real estate commission allegedly earned when plaintiff obtained a ready, willing and able buyer in accordance with the terms and conditions of a listing agreement given to plaintiff realtor by defendant sellers. The sale was never consummated. Plaintiff appeals from an adverse judgment. We affirm.

On August 18, 1972, defendants authorized plaintiff to offer for sale immovable property to Whitlow Motor Company, Inc., for the sum of $500,000.00 on terms of $80,000.00 cash, the balance to be paid monthly over 25 years at an interest rate of 7% Per annum. Defendants agreed to pay a real estate commission on the sale or on any transaction that may be negotiated during the existence of the listing agreement which expired on September 17, 1972. On August 31, an offer to purchase for the sum of $450,000.00 was made by Whitlow through plaintiff realtor. This offer was not accepted by the sellers.

On September 12, 1972, a second offer was made by the purchaser for the sum of $500,000.00. This offer contained the right of prepayment without penalty, as did the original offer. The second offer also provided, as requested by defendants, that the act of sale be passed before sellers' notary. Three of the four sellers in indivision signed the acceptance; however, the fourth owner did not.

Thereafter, on September 15, all of the sellers signed the September 12 offer, but not before amending the document. Deleted from this offer were conditions relating to the purchaser's ability (1) to obtain building permits, (2) to obtain location approval by General Motors and approval for General Motors financing, and (3) to obtain a truck dealer's license. Further deletions made by the sellers from the September 12 offer were those stipulations which provided for the payment of a realtor's commission in any circumstance other than upon the consummation of a sale. The document was amended by providing for a 10% Penalty on the remaining balance of the loan, in the event purchaser exercised the right of prepayment. As amended by defendants, the September 12 offer (which became a counteroffer dated September 15) was transmitted to plaintiff but was never accepted by the purchaser.

On appeal, it is plaintiff's position that a ready, willing and able buyer was obtained in accordance with the terms of the listing agreement, and that plaintiff is entitled to payment of the earned commission.

Lindsay contends that the September 12 offer incorporated the revisions suggested by sellers, i.e., that the purchase price be $500,000.00, and not $450,000.00 as provided for in the original offer, and that the act of sale be passed before sellers' notary. According to plaintiff, the revised offer to purchaser met the requirements of the sellers' conditions for sale under the listing agreement.

Defendants contend that the September 12 offer obtained by plaintiff contained a prepayment clause without penalty and as such, allows the purchaser to convert the sale from a credit sale (providing longterm payments to the sellers) to a cash sale (providing for a cash pay-out at the time of the act of sale or at any time thereafter). According to defendants, the listing agreement particularly provided for a 25 year payment on terms, because defendants were desirous of providing an annuity for one of the sellers. In answer to plaintiff's position that the listing agreement did not include a prohibition against prepayment and the inclusion of the prepayment clause in the offer did not vary the terms of the agreement, defendants argue that unless the right to prepay is specifically given to the purchaser in the listing agreement, any provision in the offer to purchase providing for prepayment without penalty was contrary to the agreement.

Defendants further contend the offer of September 12 did not conform to the listing agreement since the offer was conditioned upon purchaser's ability to secure building permits, financing and location approval from General Motors and licensing as a truck dealer. According to the Bellinas, ...