Preisendorf v. Jenkins, 39683
| Decision Date | 01 May 1975 |
| Docket Number | No. 39683,39683 |
| Citation | 228 N.W.2d 591,193 Neb. 611 |
| Parties | John PREISENDORF, Jr., and Ralph Mettenbrink, Appellees, v. Harold K. JENKINS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. When an owner lists his property with a business broker for sale, it is generally understood that the broker's duties are merely to find a purchaser.
2. A listing by the owner does not constitute an offer to any third party, but is merely an employment contract between owner and broker.
3. Before there can be specific performance of an oral contract, the contract itself must be proved.
Kelly & Kelly, Grand Island, for appellant.
Luebs, Tracy, Dowding, Beltzer & Leininger, Grand Island, for appellees.
Heard before SPENCER, BOSLAUGH, and BRODKEY, JJ., and HASTINGS and CLARK, District Judges.
This is an action for specific performance of an alleged contract to sell a bar and restaurant business located in Grand Island, Nebraska. The District Court found that plaintiffs were entitled to specific performance of the contract but that the defendant had divested himself of the property, and therefore specific performance was impossible. The court further found that in lieu of specific performance plaintiffs were entitled to monetary damages in the amount of $8,000 and entered judgment accordingly. Defendant has appealed.
On August 12, 1972, defendant entered into a 'Business Listing Contract' with one Bill Moore, a Grand Island realtor and business broker. By the terms of this listing agreement Moore was given the sole and exclusive right to sell the business known as 'The Library Lounge.' This agreement listed the asking price for the business as $31,500 on cash terms and specified Moore's commission to be whatever amount in excess of $31,500 a buyer would agree to pay. The agreement was executed by defendant as 'Owner.'
Moore approached plaintiffs regarding possible purchase of 'The Library,' and on August 21, 1972, plaintiffs executed a purchase agreement for the business and gave to Moore a check for $3,500 as earnest money. The purchase agreement of August 21, 1972, varied the terms of payment from those set out in the listing agreement and provided that it was subject to written approval and acceptance by defendant on or before August 28, 1972.
When this purchase agreement was tendered to defendant by Moore, defendant rejected it and told Moore that there was an apparent misunderstanding in that he, the defendant, was not the sole owner of 'The Library.' It then developed that defendant was actually the owner of two-thirds of the stock in the S-J corporation, which corporation owned 'The Library.' The other one-third of S-J corporation stock was owned by one Larry Stromer, who actually operated 'The Library.' Defendant also stated he felt a moral obligation to give Stromer first chance to buy 'The Library.'
Moore advised plaintiffs of defendant's rejection of the purchase agreement. On August 24, 1972, plaintiffs executed a second purchase agreement which met the terms set out in the listing agreement with Moore and listed the purchase price as $35,500. This second purchase agreement provided that it was subject to the written approval and acceptance by defendant on or before August 28, 1972.
Moore tendered the second purchase agreement to defendant and was informed that he, the defendant, still felt the same way about giving Stromer first chance to buy. Defendant did not approve or accept the agreement.
Subsequently, within several days after August 24, 1972, two meetings were held between plaintiffs, defendant, and Moore. At these meetings, although the testimony is in some conflict, defendant apparently informed plaintiffs that he felt a moral obligation to let Stromer buy him out if Stromer could raise the money. Further conversation resulted in an agreement by the plaintiffs and defendant to allow Stromer 60 days in which to raise the money. Plaintiffs had the impression that if Stromer didn't raise the money, defendant would sell to them. Moore made the notation on the second purchase agreement 'Refused 25th.'
Defendant also advised plaintiffs that he was not in fact the owner of 'The Library' but only the majority stockholder in the S-J corporation.
On October 16, 1972, counsel for plaintiffs advised Moore by letter that plaintiffs believed defenda...
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...of sale, on behalf of the seller, with the purchaser. See, Brezina v. Hill, 195 Neb. 481, 238 N.W.2d 903 (1976); Preisendorf v. Jenkins, 193 Neb. 611, 228 N.W.2d 591 (1975); Gould v. Rockwell, 105 Neb. 724, 181 N.W. 655 The fact, however, that the seller exercises his right not to sell the ......
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MacKnight v. Pansey, 78-33-A
...Co., 77 Ariz. 18, 25-27, 266 P.2d 739, 744-45 (1954) (authorization to sell and exclusive right to sell); Preisendorf v. Jenkins, 193 Neb. 611, 614, 228 N.W.2d 591, 593 (1975) (exclusive right to sell); Gilmour v. Simon, 37 Can.S.Ct. 422, 425 (1906) (exclusive right of sale); Walker, Americ......
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Brezina v. Hill
...assuming he had such right, to Richard Grubaugh to sign a contract of sale for the owners of said land. We held in Preisendorf v. Jenkins (1975), 193 Neb. 611, 228 N.W.2d 591: 'When an owner lists his property with a business broker for sale, it is generally understood that the broker's dut......