Nebraskans, Inc. v. Homan
| Citation | 206 Neb. 749,294 N.W.2d 879 |
| Decision Date | 22 July 1980 |
| Docket Number | No. 42791,42791 |
| Parties | THE NEBRASKANS, INC., Appellant, v. James A. HOMAN and Elizabeth A. Homan, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Contracts: Merger. A contract complete in itself will be conclusively presumed to supersede and discharge another made prior thereto between the same parties concerning the same subject matter, where the terms of the latter are inconsistent with those of the former so that they cannot subsist together.
2. Summary Judgment. Summary Judgment is an appropriate remedy only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
Bruce D. Vosburg of Fitzgerald, Brown, Leahy, Strom, Schorr, & Barmettler, Omaha, for appellant.
George A. Thompson of Robinson, Thompson & Hovey, Bellevue, for appellees.
Heard before McCOWN and WHITE, JJ., and COLWELL, KORTUM, and GRANT, District Judges.
This is an action for recovery of a real estate brokerage commission on the sale of real estate. The District Court for Sarpy County, Nebraska, granted summary judgment for the defendants. We affirm this judgment.
The defendants, James A. Homan and Elizabeth A. Homan, were owners of an apartment building in Bellevue, Nebraska. The Homans were contacted by an employee of the plaintiff, The Nebraskans, Inc., who knew the Homans were interested in selling.
On January 28, 1978, the parties signed a brokerage agreement with a stated price of $255,000 and a commission of 6 percent to the plaintiff. This brokerage agreement referred to the prospective (and eventual) buyers by their initials only.
On February 19, 1978, the Homans signed a purchase agreement with Hinton Lampley, Jr., and Ernest R. Wade which provided for a purchase price of $220,000, a $5,000 down payment, and a realtor's commission "as agreed." This agreement was signed by The Nebrakans, Inc., and was conditioned upon the purchasers' ability to obtain financing.
At the same time, the Homans and The Nebraskans, Inc., signed a Uniform Listing Contract giving Nebraskans the exclusive right to sell the Homan's property through February 20, 1978. This contract provided that Nebraskans were to receive the 6 percent commission, if within 6 months after expiration of the listing (through August 20, 1978), a sale was made due to Nebraskans' efforts.
The purchasers, Wade and Lampley, did not obtain the necessary financing and the $5,000 down payment was returned. On August 23, 1978, the Homans, without the participation of Nebraskans, signed a purchase agreement with Wade and Lampley for a price of $210,000 and the property was sold on October 17, 1978.
The trial court held that the written brokerage agreement of January 28, 1978, was merged with the listing and purchase agreement of February 19, 1978; that the listing contract expired on February 20, 1978, with the 6-month extension expiring on August 20, 1978.
The trial court further held that no sale was made by the plaintiff in conformance to the listing contract and plaintiff was not entitled to a real estate commission upon the defendants' sale of the property after expiration of the 6-month extension period.
Plaintiff first contends that there was no merger of the two agreements and that the trial court erred in so finding.
For a merger to take place, the same parties and the same subject matter must be involved and there must be some showing of intent to merge the two agreements.
The brokerage agreement of January 28, 1978, and the listing agreement of February 19, 1978, cover the identical property to be listed. Both agreements are between the plaintiff and defendants. The inconsistency between them is a reduction in the sale price and a different time limit with a 6-month extension. Also, the latter agreement was an exclusive listing for the benefit of the plaintiff. These constitute material changes.
The pertinent rule is as follows: "A contract complete in itself will be conclusively presumed to supersede and discharge another one made prior thereto between the same parties concerning the same subject matter, where the terms of the latter are inconsistent with those of the former, so they cannot subsist together." In re Estate of Wise, 144 Neb. 273, 13 N.W.2d 146 (1944) (); Goings v. Gerken, 200 Neb. 247, 263 N.W.2d 655 (1978) ().
The language of this court in the Goings case, supra is applicable here. At 251, 263 N.W.2d at 658, this court said,
The trial court was correct in holding that a merger of the agreements had occurred.
Plaintiff further contends that a material question of fact exists as to when the final purchase agreement was made.
Summary judgment is an...
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...same subject matter must be involved and there must be some showing of intent to merge the two agreements. The Nebraskans, Inc. v. Homan, 206 Neb. 749, 294 N.W.2d 879 (1980). As we stated in Purbaugh v. Jurgensmeier, 240 Neb. 679, 683, 483 N.W.2d 757, 761-62 "Merger" does not serve to make ......
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...The sale occurred in October 1997, after the 4-month period had expired. The Vanns argue that our decision in The Nebraskans, Inc. v. Homan, 206 Neb. 749, 294 N.W.2d 879 (1980), is applicable to the case at bar. We agree. The Nebraskans, Inc., involved a listing agreement that provided for ......
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