Marshall Bros., Inc. v. Geisler

• Decision Date: 29 December 1978
• Docket Number: No. 12554,12554
• Parties: MARSHALL BROTHERS, INC., an Idaho Corporation, and Gate City Real Estate Company, an Idaho Corporation, Plaintiffs-Respondents, Cross-Appellants, v. Corman C. GEISLER, Daniel A. Loewen, and Geisler-Greaves-Loewen Development Company, a partnership, Defendants-Appellants, Cross-Respondents.
• Court: Idaho Supreme Court

Page 933

588 P.2d 933

99 Idaho 734

MARSHALL BROTHERS, INC., an Idaho Corporation, and Gate City Real Estate Company, an Idaho Corporation, Plaintiffs-Respondents, Cross-Appellants, v. Corman C. GEISLER, Daniel A. Loewen, and Geisler-Greaves-Loewen Development Company, a partnership, Defendants-Appellants, Cross-Respondents.

No. 12554.

Supreme Court of Idaho.

Dec. 29, 1978.

R. M. Whittier, Pocatello, for Corman C. Geisler et al.

D. James Manning, Jr., of Racine, Huntley & Olson, Pocatello, for Marshall Bros. Inc., et al.

BAKES, Justice.

This action was commenced below by plaintiff respondents Marshall Brothers, Inc. (Marshall), and Gate City Real Estate Company (Gate City), licensed real estate brokerage companies, for recovery of a broker's commission they claim defendant appellant land developers owed them. Plaintiff respondents Marshall and Gate City claimed the commission was due as a result of their producing a ready and willing buyer for the land defendant appellants had listed for sale, although the offer of that buyer was never accepted by the developers. The district court, hearing the case without a jury, awarded plaintiff respondents one-half of the commission fee which the written realty commission contract contemplated the brokers would receive for providing a buyer. Defendant appellants brought this appeal, contending that under the terms of the contract no fee had been earned. Plaintiff respondents have cross appealed, claiming that two-thirds, not one-half, of the contractual fee should have been awarded them. In this appeal we affirm the award of the commission to plaintiffs Marshall and Gate City, but hold, on the cross appeal, that two-thirds, not one-half, of the contractual fee should have been awarded.

Defendant appellants Geisler and Loewen were in 1975 co-owners with William Greaves of a twelve acre undeveloped parcel of land in Pocatello, Idaho. Geisler, Loewen and Greaves were partners in the Geisler-Greaves-Loewen Development Co., and this partnership was also a named defendant in the action. William Greaves individually was not made a party defendant in the suit. On January 31, 1975, Greaves, Geisler and Loewen entered into a written agreement in which the nature of the parties' ownership of the twelve acre tract and their relationship among themselves was set out. The agreement was designated a "Comprehensive Tenancy-in-Common Agreement" and contained various provisions respecting the rights and liabilities of the parties, of which two relevant to this action are as follows:

"3. The profits and losses of this tenancy in common shall be shared among the tenants in common in the same proportion as their ownership interest.

"15. The tenants in common acknowledge that a majority of the tenants in common have the sole right to determine selling price and terms of the subject real estate."

On July 29, 1975, plaintiff Marshall, a licensed Idaho real estate broker doing business in Pocatello, Idaho, entered a written real estate broker's employment contract with the Geisler-Loewen-Greaves partnership in which Marshall undertook to sell the twelve acre parcel. Also listed as a broker in this agreement was William Greaves & Associates, a licensed Utah real estate broker located in Salt Lake City. William Greaves signed the contract on behalf of William Greaves & Associates. Greaves and Geisler signed this brokerage contract as partners on behalf of the Geisler-Loewen-Greaves partnership; Loewen did not sign the agreement. The brokerage agreement provided that Marshall and William Greaves & Associates would split equally any fee; that a sales commission of 10% Of the selling price would be earned on the finding of a "buyer ready and willing to enter into a deal for said price and terms"; and that either broker could "if desired, secure the cooperation of any other broker, or group of brokers, in procuring a sale of said property." Price and terms were $144,000 with a "substantial down payment." The contract exempted one prospective buyer, Federal Projects, Inc., from the commission agreement. It was further noted on the agreement that "the owners are partners through a comprehensive tenancy-in-common agreement . . . ." The brokerage contract was to be effective until January 1, 1976.

During August, 1975, Marshall undertook to find a buyer for the property. It erected signs on the land and showed the parcel to prospects. In the course of these efforts, Marshall contacted Gate City, another licensed real estate broker located in Pocatello, in an effort to help solicit a buyer. As noted above, the employment of cooperating agents was contemplated in the broker's contract. In early September, 1975, Gate City located a prospective buyer who was interested in the property. At this time an oral agreement was made between Marshall, Gate City and William Greaves of William Greaves & Associates that any brokerage commission that would result from the sale of the property would be split in three equal parts, to be shared by Marshall, Gate City, and William Greaves & Associates, if Gate City, as a cooperating broker, were to produce a ready and willing buyer for the property. This agreement was reached by phone calls between Marshall and William Greaves, and Marshall and Gate City.

On September 3, 1975, Gate City obtained an offer on the property in the amount of $120,000 made by one Neal Brutsche. Brutsche at that time made an earnest money deposit of $1,000. This offer did not meet the price terms demanded by the sellers, and no response to the offer was ever made by any of the three co-owners.

On September 11, 1975, William Greaves sold his one-third share of the co-tenancy to his two partners, Loewen and Geisler. On September 23, 1975, Greaves notified Marshall of this transaction by letter containing the following statement: "I have transferred my ownership interest in the Pocatello land to my two partners, and they have been advised to cancel the listing." No further instructions were received by Marshall from any of the co-owners respecting the agreement by which Marshall was to sell the land.

On September 26, 1975, Brutsche changed his offer to meet the sellers' asking price for the twelve acres. At that time Brutsche agreed to transfer the $1,000 earnest money he deposited on his first offer to the second offer and to pay the balance of the agreed $144,000 selling price in cash upon closing. This offer again was never accepted by the sellers.

Subsequently, Geisler agreed to sell his share of the co-tenancy, now a one-half interest, to Federal Projects, Inc. (FPI), and Loewen entered into a partnership with FPI for construction of a federally funded apartment complex on the twelve acre tract. The date of closing of the sale to FPI is in dispute. The real estate broker who arranged the transaction with FPI testified that he did not believe that the FPI transaction was consummated until November of 1976. The trial court found that it was not concluded before the September 26, 1975, Brutsche offer was made.

Plaintiffs Marshall and Gate City brought this action to recover their share of the brokerage commission which they claim was earned when Gate City produced Neal Brutsche's second offer to buy on September 26, 1975. Plaintiffs maintained that Brutsche's second offer met the price and terms specified in the real estate broker's employment contract and, hence, they had fulfilled their obligation to find a buyer ready and willing to enter a deal on the sellers' terms. Marshall and Gate City sought to recover two-thirds of the 10% Commission specified in the broker's contract.

The trial court found that a valid written real estate broker's contract was entered into between the named defendants and Marshall on July 29, 1975, and that an oral agreement establishing a three way split of the commission was made by Marshall, William Greaves & Associates, and Gate City in early September, 1975. The court ruled that plaintiffs Marshall and Gate City performed their duties under this contract by producing the second Brutsche offer, dated September 26, 1975, and that on this date no firm agreement had yet been reached by the sellers and FPI for sale and purchase of the property by those parties. The court found that there were no facts sufficient to establish a revocation or cancellation of the real estate broker's contract by the defendants prior to plaintiffs' performance and decreed that Gate City and Marshall should recover one-half of the 10% Commission specified in the contract. Attorney fees incurred in bringing this action were awarded to plaintiffs under a provision in the contract.

Defendants argue that the trial court's adoption of findings of fact and conclusions of law prepared by plaintiffs' counsel constitute reversible error. We have examined the record made at trial and find that the findings and conclusions adopted by the trial court are sufficient and supported by the evidence adduced at trial. The findings and conclusions drafted by counsel accurately reflect the ruling the trial court made at the close of the trial. We will not reverse this case for the drafting of new findings of fact and conclusions of law. ¹

Defendants contend that the real estate broker's employment contract made by defendants, Marshall, and William Greaves & Associates is not an enforceable contract under I.C. § 9-508 ² since Loewen, one of the co-owners of the property, did not sign it. At the time the contract was made the three co-owners were partners in the Geisler-Greaves-Loewen Development Company, a partnership formed for the purpose of developing the twelve acre Pocatello tract. The three partners had also entered the "Comprehensive Tenancy-in-Common Agreement" which provided that profits and losses arising from the property would be shared equally by the co-owners and that sale of the tract could be arranged by two of the three owners. Loewen signed this instrument. Loewen's...