Revere Real Estate, Inc. v. Cerato

• Decision Date: 19 January 1982
• Citation: 186 Conn. 74,438 A.2d 1202
• Court: Connecticut Supreme Court
• Parties: REVERE REAL ESTATE, INC. v. Louis CERATO, Jr., et al.

Page 1202

438 A.2d 1202

186 Conn. 74

REVERE REAL ESTATE, INC. v. Louis CERATO, Jr., et al.

Supreme Court of Connecticut.

Argued Dec. 1, 1981.

Decided Jan. 19, 1982.

F. Woodward Lewis, Jr., Yalesville, with whom on the brief, were Ellen L. Sostman, Yalesville, and Joseph M. Delaney, Wallingford, for appellants (named defendant et al.).

Leon O. Gross, Wallingford, for appellee (plaintiff).

Frank St. John, Meriden, for appellees (defendant Salvatore J. Prisco et al.).

Before SPEZIALE, C. J., and PETERS, PARSKEY, ARMENTANO and SHEA, JJ.

PETERS, Justice.

This action arises out of the nonperformance of a written contract for the sale of real property. The plaintiff, Revere Real Estate, Inc. (hereinafter Revere), sued the sellers, defendants Louis Cerato, Jr. and Helen G. Cerato, to recover a real estate commission. The sellers thereupon impleaded the buyers, Salvatore J. Prisco and Anne D. Prisco, by a third-party complaint naming them as third-party defendants. The buyers responded with an answer, defenses and a counterclaim against the sellers. The trial court rendered judgment for Revere on its complaint, for the buyers on the sellers' third-party complaint and for the sellers on the buyers' counterclaim. Only the sellers have appealed.

The trial court's memorandum of decision and the record reveal the following facts. The sellers, on June 12, 1974, signed a real estate listing contract giving Revere an exclusive right to sell their property[186 Conn. 76] at 81 Swain Avenue, Meriden. The listing contract entitled Revere to a commission of 6 percent of the gross sale price if "said property shall have been sold or a customer procured, ready, willing, and able to buy said property, either for the price herein or for any other price or upon other terms which may be acceptable to (the sellers)." Thereafter, in March 1975, as a result of Revere's efforts the sellers entered into a sales contract with the buyers for $38,500. The sales contract called for a $1000 deposit, which the buyers paid, and provided that "(i)f Purchaser fails to perform any of his obligations under this agreement, then Seller may, after notifying Purchaser, retain all payments made by Purchaser as liquidated and agreed damages; and all other rights and obligations of the Seller and Purchaser under this agreement shall terminate."

The trial court found that the defendant buyers were "ready, willing, and able" buyers within the terms of the listing contract, and that the plaintiff was therefore entitled to recover a commission of $2310, 6 percent of the sale price of $38,500. The court also found that the sellers had wrongfully taken from the property certain items, "at least the shower doors and shelves," which should have remained as "improvements...used with the property" in accordance with the terms of the sales contract. Finally, the court found that both the buyers and the sellers were willing to negotiate over the missing items, and some other disputed minor items of personal property, but ultimately failed to do so. On this basis, the court found that neither the buyers nor the sellers had sustained their burden of proof in their actions against each other on the sales contract.

The sellers, the sole appellants, have raised four claims of error: (1) the court's findings of fact with respect to the buyers' willingness to purchase are not supported by the evidence; (2) the court should have awarded the sellers the $1000 deposit; (3) the court should have found the buyers to be in breach of the sales contract; and (4) the court should have found for the sellers in the action on the listing contract because the buyers were not willing to close upon the terms of the sales contract. Because these claims are obviously interrelated, we will consider first the rights of the parties under the listing contract and then their rights under the sales contract.

I

The right of a brokerage firm to recover a commission depends upon the terms of its employment contract with the seller. To be enforceable, this employment contract, often called a listing contract, must be in writing and must contain the information enumerated in General Statutes § 20-325a (b); ¹ Thornton Real Estate, Inc. v. Lobdell, Conn. (42 Conn.L.J., No. 46, pp. 23, 24) (1981); Hossan v. Hudiakoff, 178 Conn. 381, 382, 423 A.2d 108 (1979). To recover its commission, the brokerage firm ordinarily must show that it has procured a customer who is ready, willing and able to buy on terms and conditions prescribed or agreed to by the seller. Walsh v. Turlick, 164 Conn. 75, 80, 316 A.2d 759 (1972); Busker v. United Illuminating Co., 156 Conn 456, 465, 242 A.2d 708 (1968); Dyas v. Akston, 137 Conn. 311, 313, 77 A.2d 79 (1950). In the alternative, the broker may be entitled to recover if it has brought the buyer and the seller to an enforceable agreement. Walsh v. Turlick, supra, 80-81; Spring v. Nagle, 104 Conn. 23, 26-27, 131 A. 744 (1926). The listing contract may, however, make the broker's right to a commission dependent upon specific conditions, such as the consummation of the transaction and the full performance of the sales contract. Spring v. Nagle, supra, 27; Stagg v. Lawton, 133 Conn. 203, 210, 49 A.2d 599 (1946); Nugent v. DelVecchio, 36 Conn.Sup. 532, 537, 415 A.2d 1339 (1980).

The undisputed facts of the present case reveal that the sellers and the buyers entered into a binding contract of sale. ² Because that contract was not consummated, its execution would not, per se, allow the plaintiff to recover under the terms of the listing agreement providing that a commission would be payable if "said property shall have been sold." Nugent v. DelVecchio, supra, 539. Its execution is, however, evidentiary of the procurement of a ready, willing, and able buyer on terms acceptable to the seller, the alternate basis of recovery stipulated in the listing contract.

The trial court's finding of fact that the Priscos were ready, willing, and able to purchase the Swain Avenue property is subject to review in this court only to determine whether, in light of the evidence and the pleadings in the record as a whole, it was clearly erroneous. Practice Book § 3060D; Gilman v. Pedersen, Conn. (42 Conn.L.J., No. 29, pp. 1, 2) (1981); Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). In addition to relying on the execution of the sales contract, the trial court noted that it was the sellers who precipitated the failure to close by their unauthorized removal of certain fixtures from the premises at a time when the buyers were ready, willing, and able to proceed. The sellers argue that the buyers' readiness to close was conditioned upon the return of certain other items that were personal property, such as the electric garage door apparatus. The record reveals, however, testimony both by the buyers and by their attorney that the...