Peters Grazing Ass'n v. Legerski, 4497

• Citation: 544 P.2d 449
• Decision Date: 24 December 1975
• Docket Number: No. 4497,4497
• Parties: PETERS GRAZING ASSOCIATION, Appellant (Defendant below), v. Thomas LEGERSKI, Appellee (Plaintiff below).
• Court: United States State Supreme Court of Wyoming

Page 449

544 P.2d 449

PETERS GRAZING ASSOCIATION, Appellant (Defendant below), v. Thomas LEGERSKI, Appellee (Plaintiff below).

No. 4497.

Supreme Court of Wyoming.

Dec. 24, 1975.

Rehearing Denied Feb. 3, 1976.

See 546 P.2d 189.

Henry A. Burgess, Sheridan, signed the brief and appeared in oral argument on behalf of appellant.

Philip S. Garbutt and Bruce P. Badley, Badley & Shoumaker, Sheridan, signed the brief, and Philip S. Garbutt, Bruce P. Badley and Micheal K. Shoumaker, Sheridan, appeared in oral argument on behalf of appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice, delivered the opinion of the court.

Walter F. Peters during his lifetime put together a fine large ranch in Sheridan County. When he died in April, 1973, it was valued in excess of $2,000,000.00. By his will, he directed that as soon as practical after his death his executor, R. R. Loss, sell and convert into cash all the lands used in his ranch operation, consisting of over 20,000 acres of deeded land, leases to about 2,400 acres of state and federal lands and three mountain permits for about 5,500 sheep.

The plaintiff-appellee, a realtor, somehow learning that the ranch was for sale, contacted Mr. Loss, executor of the Peters estate, for a listing of the property but was told that there would be no listing to any realtor in that a bid of at least $2,000,000.00 from one of several prospective buyers had been assured. Thereafter, the plaintiff, in May, 1973, apparently got in touch with a Mr. Robert A. Barkley, the local Farmers Home Administration supervisor in Sheridan County who had been contacted by a group of Peters neighbors, organized into the defendant-appellant, Peters Grazing Association, then unincorporated, with a view to obtaining an FHA loan to acquire the Peters ranch. Together they went to the office of the attorney for the estate, where the plaintiff was given full information about the fee acreage, lease acreage, mineral leases, grazing permits and other detailed data concerning the ranch. Mr. Barkley gave to the plaintiff a government form of option to prepare for the defendant association. When filled in by plaintiff, it was turned over to Mr. Barkley who, in turn, had it signed by a Mr. Dow, president of the grazing association, and by a Mr. Gutz, as its secretary. A form of standard purchase offer was also completed by plaintiff but it bore no signatures and was never executed by the parties to the proposed sale because custom drawn forms in the shape of letters were prepared by the attorney for the estate.

Plaintiff then took the documents to the executor but Mr. Loss refused to sign because of the other prospective purchasers. However, he did have his attorney prepare a letter, dated June 26, 1973, addressed to the plaintiff; in brief, it stated that plaintiff had contacted the executor indicating that he represented the Peters Grazing Association and the association wanted an option for 60 days to purchase the Peters ranch, but he did not want to sign the option because he had several parties interested and if one of them bought, he would not have to await the expiration of the option. The letter went on to say that the executor before ever signing an option or making any agreement in connection with it, wanted an understanding of what compensation that he, as the executor, would have to pay for the plaintiff's services in assisting a sale to the defendant grazing association and suggested a fee of $55,500.00 which would be less than the usual five or six percent, which it was indicated in a sale of this magnitude would not necessarily apply. The paper closed by stating:

'In the event I do not receive the necessary guarantee of a $2,000,000.00 proposal from any one of the private parties by 4:00 p. m., on July 5th, would you be willing to assist me in effecting a sale to Peters Grazing Association, subject to the foregoing understanding relative to your compensation. * * *'

Plaintiff then endorsed an approval of the terms on the letter, the gist of which started that he had not been given a sale listing but consented that:

'* * * If the Ranch is sold for $2,125,000.00 to Peters Grazing Association, then I agree that my compensation shall be computed on the basis set forth in your letter. I agree to assist you in every way I can to effect a sale to Peters Grazing Association and to help that Association acquire the necessary financing.'

The defendant grazing association authorized a bid of $2,060,000.00, and submited it to the executor, who thereupon agreed to sell the ranch for $2,030,000.00 provided that the Peters Grazing Association would pay for the services of the plaintiff. The specific provision, with respect to the fee, appeared in a letter by Loss to the association, which also set out 16 other separate terms of the sale, and provided as follows:

'(17) The Peters Grazing Association is to be responsible for any commission or fee that may be payable to Thomas Legerski of Legerski Realty Company for any service that Mr. Legerski may have performed on behalf of Peters Grazing Association in connection with the sale of the Walter F. Peters Ranch to the Association. The Association must obtain a written acknowledgment from Mr. Legerski directed to me in my capacity as Executor of the Estate of Walter F. Peters, that Mr. Legerski will look solely to the Peters Grazing Association for his compensation for services rendered.

I have never listed the property for sale with Mr. Legerski or any other realtor and the Association must protect me in this respect against the claim of Mr. Legerski, if he should assert a claim. I am sure that the Association will have no difficulty in working out a satisfactory arrangement with Mr. Legerski.'

Somewhere during the course of these proceedings, it seems the district judge had informally indicated that he would not confirm any sale providing for the payment of a realtor's commission or fee. The question of the correctness of or reason for that judicial point of view is not involved in this case and it is brushed over lightly in the record but it apparently motivated the extensive documentation to assure that Legerski got paid.

On July 9, 1973, the Peters Grazing Association, by Jack C. Dow, its president, signed a letter to Mr. Legerski, which, after reciting and reviewing the fact that the executor would not pay a commission or other compensation on account of the purchase of the Peters ranch by the Peters Grazing Association, then went on to say:

'In view of the services that you have rendered and the effort that you have made on our behalf, we agree that if we are successful in acquiring the Walter F. Peters Ranch, subject to the reservations previously noted by Mr. Loss, for the sum of $2,030,000.00 that Peters Grazing Association will pay you $30,000.00, said payment to be accepted by you in full settlement of any claims that you may have for commission or for services rendered in connection with the acquisition of said ranch. Said payment would be made at the time of final closing, which would be on or about December 1, 1973.'

The plaintiff, in writing delivered, acknowledged and accepted the terms of the letter.

The sale of the ranch was confirmed by the district judge and closed about December 1, 1973. The plaintiff made demand on the defendant for payment of the $30,000.00 fee; the defendant refused to pay on the ground that the plaintiff had never performed any services for it. Plaintiff filed this action and, upon trial, the district court found generally in favor of the plaintiff and awarded him a judgment for $30,000.00. Not having been requested, there were no special findings of fact and conclusions of law entered by the court. It is from that judgment the defendant appeals.

The defendant presents three grounds for error:

1. The Peters Grazing Association is not liable for any contract to pay appellee $30,000.00 entered into prior to date of its incorporation.

2. Legerski contributed no services for, or on behalf of, the Peters Grazing Association, and had no contract of employment to support a commission payable by the appellee, as buyer.

3. The Peters Grazing Association would not be unjustly enriched by $30,000.00, as claimed by plaintiff, if his claim be denied.

The simple facts of this case are that the executor of the estate of Walter F. Peters may have agreed to pay a substantial commission for plaintiff's services, as a realtor, if the ranch was sold to the defendant. However, he found himself in a bind when it became apparent that the district judge would not allow any fee for the realtor. We make it clear in this connection that the record is absent any explanation in that regard, whether because of a general policy of the court or with respect to this case, in particular. ¹ The negotiations between the executor and the defendant then resolved themselves into the proposition that the offer of $2,060,000.00 by the defendant would be reduced to $2,030,000.00, provided that the defendant would pay a settled fee of $30,000.00 to the plaintiff. The defendant's witnesses claim that plaintiff performed no services for the association. Mr. Loss, the executor, emphatically says that the plaintiff performed no services for the estate. The documents admit to the contrary. Mrs. Peters consented to and urged the sale of the ranch to the Peters Grazing Association and requested that no further bids be received or considered. The estate netted its appraised value.

The defendant relies on the general rule that since a corporation cannot before its organization have agents contract for itself, or be contracted with, it is not liable upon any contract made by its promoters prior to its organization unless the obligation is assumed by its own act after corporate existence comes into being. Williams v. McNally, 1928, 39 Wyo. 130, 270 P. 411; Durlacher v. Frazer, 1898, 8 Wyo. 58, 55 P. 306, 80 Am.St.Rep....