Reese v. Utter

• Decision Date: 23 June 1976
• Docket Number: No. 8254,8254
• Citation: 92 Nev. 377,551 P.2d 1099
• Parties: Oscar REESE, Appellant, v. Chester C. UTTER, Respondent.
• Court: Nevada Supreme Court

Page 1099

551 P.2d 1099

92 Nev. 377

Oscar REESE, Appellant, v. Chester C. UTTER, Respondent.

No. 8254.

Supreme Court of Nevada.

June 23, 1976.

Walther, Key & Maupin, Reno, for appellant.

Paul A. Richards, Reno, for respondent.

OPINION

PER CURIAM:

The Grass Valley Ranch, owned in corporate form by Molly Knudtsen, adjoins the Callahan Ranch. At the time of the occurrence of the events which culminated in this appeal, the Callahan Ranch was owned by Oscar Reese, appellant. In 1967 or 1968, Reese casually expressed to Knudtsen his desire to sell the ranch; Knudtsen expressed no corresponding desire to purchase at that time. In 1969, however, circumstances changed and Knudtsen developed a keen interest in acquiring Reese's property. For the purpose of negotiating a purchase of the ranch, she contacted Chester C. Utter, a family friend and licensed real estate broker.

After preliminary discussions between Utter and Reese, Reese prepared and submitted to Utter a listing agreement which (1) employed Utter for a period of 30 days for the purpose of procuring a purchaser 'ready, willing and able to buy said property at the price and terms . . . authorized by me' and (2) provided that Utter would receive a full commission if, after the expiration of the 30-day period, the property was sold to a purchaser procured by Utter.

At the time the listing agreement was executed, the relationship between Knudtsen and Reese had become somewhat strained. Apparently Knudtsen had constructed a fence which bisected a meadow long used by Reese. When tendered an offer to purchase by Utter in late March of 1969, Reese flatly rejected it when he learned it was made on behalf of Knudtsen. Thereafter, Utter made no further effort to sell Reese's property to Knudtsen or anyone else.

In December of 1969, Reese approached another real estate broker, Elmer Weishaupt, with whom he had entered into a listing agreement which had expired several months previously. Reese requested that Weishaupt contact Knudtsen as a possible purchaser for his ranch. A contract for sale of the ranch was consummated between Knudtsen and Reese through Weishaupt in March of 1970. The purchase price for the ranch, including livestock and equipment, was $285,000.00.

Learning of the sale, Utter commenced an action against Reese to compel payment of a 5% commission. His efforts were rewarded by a trial court judgment in his favor in the amount of $14,250.00.

On this appeal, we are presented with the following questions: (1) Whether Utter procured a buyer ready, willing and able to purchase the Callahan Ranch within the period prescribed by the listing agreement? And (2) whether Utter was the 'procuring cause' of the sale of the ranch to Molly Knudtsen?

1. Although the listing agreement between Reese and Utter specified a sales price of $300,000.00 (which included livestock), it also provided that Utter would be entitled to a commission if the ranch could be sold at any price and on any terms authorized by Reese. The offer submitted by Utter was for $160,000.00 exclusive of livestock. Utter never produced a buyer for the livestock who was prepared to meet Reese's terms. The $160,000.00 offer, therefore, differed materially from the terms of the listing agreement.

Where a broker seeks to recover a commission based upon the...