Owens-Illinois, Inc. v. Thomas Baker Real Estate, Ltd.

• Decision Date: 21 April 1989
• Docket Number: OWENS-ILLINOI,No. 870240,INC,870240
• Citation: 237 Va. 649,379 S.E.2d 344
• Parties: v. THOMAS BAKER REAL ESTATE, LTD. t/a Baker Real Estate. Record
• Court: Virginia Supreme Court

Page 344

379 S.E.2d 344

237 Va. 649

OWENS-ILLINOIS, INC. v. THOMAS BAKER REAL ESTATE, LTD. t/a Baker Real Estate.

Record No. 870240.

Supreme Court of Virginia.

April 21, 1989.

Robert T. Wandrei (R. Louis Harrison, Jr. and Radford & Wandrei, on briefs), for appellant.

W.T. Robey, III (Robey & Irvine, on brief), for appellee.

Present: All the Justices.

LACY, Justice.

Thomas Baker Real Estate, Ltd. (Baker) and Owens-Illinois, Inc., entered into a real estate brokerage contract on March 15, 1986. The non-exclusive listing agreement, drafted by Baker, entitled him to a commission if he produced a buyer for an Owens-Illinois mill in Buena Vista. On April 7, 1986, Baker notified Owens-Illinois that he had a buyer who also was considering purchasing the mill's inventory. The following day, April 8, the buyer told Baker he would purchase the mill at the stated price.

The same day a potential buyer from North Carolina contacted Owens-Illinois. The following day, April 9, an Owens-Illinois representative met with the North Carolina buyer and a letter of intent was signed on April 10.

Owens-Illinois advised Baker, by telephone, on April 10 that it was negotiating the sale with the North Carolina buyer. When Baker objected, stating that his buyer was committed, Owens-Illinois replied that it could negotiate with only one buyer at a time. Although the negotiations continued between Owens-Illinois and the North Carolina buyer for six more weeks, the sale never was consummated. Owens-Illinois then contacted Baker, advising him that it was ready to accept any offer that he might be able to produce under the listing agreement. Baker's buyer, however, no longer was interested in the property.

Baker then filed a motion for judgment seeking $35,000 from Owens-Illinois, allegedly due under the listing agreement. Baker asserted that the commission became due when he produced a purchaser. Baker also charged Owens-Illinois with violating Paragraph 6 of the agreement which stated:

Owner shall notify REALTOR if negotiations are underway with any purchaser not included in this agreement. Agent agrees to not interfere with these negotiations.

Owens-Illinois denied liability arguing that the terms of the agreement were not met because the procurement of a purchaser was not accompanied by an offer in writing or "in the form of a contract that was enforceable." Further, while maintaining Paragraph 6 was for its benefit, Owens-Illinois asserted that it, nevertheless, complied with the notice requirement.

Owens-Illinois moved to strike the evidence at the close of Baker's case and again at the conclusion of all evidence. The trial court denied both motions. The jury returned a verdict for Baker and awarded him $35,000. Owens-Illinois moved to set aside the verdict. The court denied this motion as well. Owens-Illinois assigns error to each of the trial court's rulings.

On appeal, relying on Snider v. New River Ins., etc. Corp., 187 Va. 548, 552-53, 47 S.E.2d 398, 400-01 (1948), Owens-Illinois argues that the brokerage agreement required Baker to obtain a binding contract to sell the mill, not simply to locate a ready, willing, and able purchaser. As Baker produced no evidence of an enforceable sales contract, Owens-Illinois reasons that the trial court erred in denying the motions to strike. Owens-Illinois, however, never sought a ruling by the trial court that, as a matter of law, the agreement was one to sell rather than to find a buyer. Instead, Owens-Illinois specifically alleged that Baker had "not procured a buyer that was ready, willing and able to purchase the property." Hence, we will not consider Owens-Illinois' contentions, raised for the first time on appeal, that the agreement was...