Marathon Realty Corp. v. Gavin
| Decision Date | 02 January 1987 |
| Docket Number | No. 85-405,85-405 |
| Citation | 224 Neb. 458,398 N.W.2d 689 |
| Parties | MARATHON REALTY CORPORATION, a Nebraska Corporation, Appellee, v. Alvin E. GAVIN, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Judgments: Appeal and Error. Where in a law action a jury has been waived, the findings and judgment of the trial court have the effect of a jury verdict and will not be set aside unless they are clearly wrong.
2. Brokers: Property: Sales. In order for a broker employed to secure a purchaser of realty to recover a commission, his or her efforts must be the efficient procuring cause of the sale.
3. Brokers: Property: Sales. The efforts of a broker employed to secure a purchaser of realty have been the efficient procuring cause of the sale when the broker has secured a prospective purchaser who is ready, willing, and able to buy the property on terms and conditions upon which the broker is authorized to secure a purchaser, or on terms acceptable to the seller.
4. Brokers: Property: Sales. Efforts which produce a series of unbroken, continuous events culminating in the sale of realty are the efficient procuring cause of the sale, notwithstanding the fact that such efforts may not be the sole cause of the sale.
5. Brokers: Property: Options to Buy or Sell: Sales. A broker is not entitled to a commission for producing a prospective buyer willing to execute only an option to purchase realty.
6. Options to Buy or Sell: Property: Contracts: Sales. Once an option to purchase is exercised, it becomes a contract for the purchase and sale of the realty.
7. Contracts: Options to Buy or Sell: Property: Brokers: Sales. Neb.Rev.Stat. § 36-107 (Reissue 1984) requires that every contract between the owner and any broker or agent employed to sell and is void unless the contract is in writing and subscribed by both the owner and the broker or agent; the contract must also describe the land to be sold and set forth the compensation to be allowed by the owner in case of sale by the broker or agent.
8. Property: Options to Buy or Sell: Brokers: Sales. One who is a joint owner of realty but represents himself or herself to be the sole owner thereof may not avoid full payment of an agreed commission on the ground that another also has an interest in the property.
9. Property: Options to Buy or Sell: Brokers: Sales. A broker's right to compensation cannot be impaired by either the subsequent inability or unwillingness of a purported owner to consummate the sale on the terms prescribed or by said owner's inability to convey good title to real estate because of the failure to obtain a joinder in the conveyance by a third party who has an interest in the land.
Joseph L. Leahy, Jr., of Epstein & Leahy, Omaha, for appellee.
John E. Rice, Bellevue, for appellant.
Following a bench trial, plaintiff-appellee, Marathon Realty Corporation, a Nebraska corporation, recovered a $21,000 judgment against defendant-appellant, Alvin E. Gavin, for a commission arising from the sale of certain realty. Gavin assigns as errors the trial court's findings that (1) Marathon was the efficient procuring cause of the sale, (2) the agreement between Marathon and Gavin had not expired prior to the sale, and (3) Gavin, although only a joint owner of the real estate, is responsible to Marathon for the entire commission. We affirm.
On December 8, 1981, Marathon and Gavin executed a written agreement whereby Marathon undertook to sell, within the ensuing 12 months, certain realty in Sarpy County to a prospective buyer whose identity was known to Marathon but not to Gavin. The agreement recited that Gavin was the owner of the realty; in truth and fact, however, he owned it jointly with his estranged wife. The agreement further provided that if the sale were made, Gavin would pay Marathon a commission of 6 percent of the gross sales price. Within the next 2 or 3 weeks, Marathon and Gavin executed a second written agreement, also dated December 8, 1981, which was identical to the first except that the second agreement identified Albertson's Supermarkets of Boise, Idaho, as the prospective buyer. Gavin's wife signed neither of the aforedescribed agreements.
Marathon had had a contact with Albertson's prior to December 8, 1981, at which Marathon learned of Albertson's possible interest in acquiring the realty in question. After the first agreement was signed, Marathon, through a series of telephone calls, correspondence, and in-person conversations, provided Albertson's with information concerning the realty. Much of that information was acquired from Gavin.
On July 9, 1982, Gavin and his wife signed a document, prepared by Albertson's and transmitted to them through Marathon, which granted Albertson's an option to purchase the realty in question. That document provided that the Gavins would pay Marathon a 6-percent commission. Albertson's, however, rejected that option and, instead, on October 18, 1982, accepted a different option which it had also prepared and transmitted directly to the Gavins. This second option made no provision for the payment of a commission to Marathon but did provide that "[a]ll brokerage commissions" were to be paid by the Gavins. It appears that Marathon had no contact with Albertson's after presenting the first option to the Gavins.
The option accepted by Albertson's expired, as extended, on October 13, 1983. On that date the Gavins executed a general warranty deed conveying the subject realty to Albertson's. On October 14, 1983, the Gavins received $350,000 from Albertson's, and the deed which had been executed the previous day was filed with the register of deeds. Marathon was not permitted to participate in these transactions, although it had sought to do so. Gavin refused to pay Marathon any commission, and this suit followed.
Having reviewed the facts, we proceed to a consideration of Gavin's assignments of error. In doing so it is to be kept in mind that where in a law action a jury has been waived, the findings and judgment of the trial court have the effect of a jury verdict and will not be set aside unless they are clearly wrong. Chlopek v. Schmall, 224 Neb. p. 78, 396 N.W.2d 103 (1986); Kreikemeier v. McIntosh, 223 Neb. 551, 391 N.W.2d 563 (1986); Lis v. Moser Well Drilling & Serv., 221 Neb. 349, 377 N.W.2d 98 (1985).
Gavin's first assignment of error is based on the rule that in order for a broker employed to secure a purchaser of realty to recover a commission, his or her efforts must be the efficient procuring cause of the sale. Abboud v. Cir Cal Stables, 190 Neb. 396, 208 N.W.2d 682 (1973). The efforts of such...
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...the person who hired the broker has received the service for which he or she has contracted...." Marathon Realty Corp. v. Gavin, 224 Neb. 458, 462, 398 N.W.2d 689, 693 (1987). The case goes on to hold that an agent who has rendered the agreed upon service is entitled to be paid, absent a br......
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...to be entitled to his commission, the broker must prove that he has produced a ready, willing, and able buyer. Marathon Realty Corp. v. Gavin, 224 Neb. 458, 398 N.W.2d 689 (1987); Dworak v. Michals, 211 Neb. 716, 320 N.W.2d 485 (1982); DaLee Realty, Inc. v. Kuhl, 209 Neb. 6, 305 N.W.2d 891 ......
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