Richardson v. Afdahl

• Decision Date: 21 October 1981
• Docket Number: No. 13353,13353
• Citation: 313 N.W.2d 457
• Parties: W. M. RICHARDSON, Plaintiff and Appellant, v. Richard AFDAHL and Esther Afdahl, Defendants and Appellees. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 457

313 N.W.2d 457

W. M. RICHARDSON, Plaintiff and Appellant, v. Richard AFDAHL and Esther Afdahl, Defendants and Appellees.

No. 13353.

Supreme Court of South Dakota.

Considered on Briefs Oct. 21, 1981.

Decided Dec. 16, 1981.

Arend E. Lakeman of Lakeman & Krause, Mobridge, for plaintiff and appellant.

Russell C. Molstad, Jr., of Molstad & Molstad, Sturgis, for defendants and appellees.

DUNN, Justice.

This is an appeal from a summary judgment granted to appellees, Richard and Esther Afdahl, in an action by appellant, W. M. Richardson, to recover his broker's commission of $14,625 pursuant to an exclusive listing agreement for the sale of appellees' ranch. We reverse and remand for trial.

On March 13, 1978, appellee and appellant executed a one-year exclusive listing agreement for the sale of appellees' ranch. The agreement provided for a total sale price of $292,500, including twenty-nine percent in down payment and the balance at seven percent interest payable in ten years on a twenty-year amortized contract. The agreement also provided for possession at a time to be negotiated and a broker's commission of five percent on any sale accepted by appellees.

Appellant subsequently located a prospective purchaser, King R. Rhiley, Jr., who executed a Uniform Purchase Agreement (Agreement) on October 11, 1978. By the terms of the Agreement, Rhiley offered $292,500 for the ranch with the annual payments described in the listing agreement to be made on December 1 of each year. A check for $14,825 in earnest money accompanied the Agreement. The Agreement also provided for an additional cash payment of $70,000 on the closing date, December 1, 1978 and for transfer of possession on December 1, 1978.

On October 14, 1978, appellant notified appellees that their ranch was sold. Two days later, appellant met with appellees at their ranch and presented them with the Agreement and the earnest money deposit. Appellees did not sign the Agreement.

The testimony conflicts as to why the Agreement was not signed. Appellant contends that appellees wanted to discuss the sale with the County Supervisor of the FmHA with regard to repaying the loan on their land and the disaster loan on their cattle. Appellant further claims that on November 4, 1978 he contacted appellees again. Appellees rejected the offer on advice of counsel and refused to negotiate a possession date or to make a counteroffer to submit to the prospective purchaser. All discussions were terminated at this point.

Appellees claim that during the October 14, 1978 meeting with appellant, they objected to the possession date and instructed appellant to go back to Mr. Rhiley and get another possession date from which they could negotiate. They also contend that later that same day, appellant contacted them and insisted that they sign a blank Agreement except for a possession date which appellant would then send to Rhiley. Appellees refused to sign a blank Agreement and requested that appellant get another possession date from Rhiley from which they could negotiate. Appellees did not hear from appellant until they received a letter from appellant demanding his brokerage commission.

Appellees moved for summary judgment under SDCL 15-6-56(b), (c) on the ground that no genuine issue as to any material fact existed. This motion was denied by the circuit court. After the pretrial conference, the trial judge authorized appellees' counsel to resubmit their motion for summary judgment. Appellant made a motion for summary judgment and made application to cross-examine appellees as adverse witnesses. Appellees then renewed their motion. At a hearing on the motions, the circuit court denied appellant's motion to cross-examine appellees. Subsequently, the circuit court entered an order and judgment granting summary judgment to appellees.

On appeal, appellant contends that summary judgment was improperly granted because a genuine issue of material fact exists; that the circuit court did not have the authority to request appellees to renew their motion for summary judgment; and that the circuit court erred in denying his motion to cross-examine appellees. In light of our resolution of the first issue, we need not address the final two issues.

"Summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. SDCL 15-6-56(c)." Hurney v. Locke, 308 N.W.2d 764, 767 (S.D.1981). The pleadings, affidavits, depositions and all reasonable inferences which may be drawn therefrom are to be viewed most favorably to the nonmoving party. Hurney v. Locke, supra; Wilson v. Great Northern Railway Company, 83 S.D. 207, 157 N.W.2d 19 (1968). "The burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law(.)" Wilson v. Great Northern Railway Company, 83 S.D. at 212, 157 N.W.2d at 21.

A broker is entitled to his commission when he produces a purchaser who is ready, able and willing to purchase at a price and upon the terms specified by the principal or satisfactory to him. Larson v. Syverson, 84 S.D. 31, 166 N.W.2d 424 (1969); Dobson v. Wolff, 74 S.D. 493, 54 N.W.2d 469 (1952). But if a material and substantial variance exists between the listing contract and the offer, the offer can be rejected by the seller without incurring liability to the broker. Erwin v. Eakin, 46 S.D. 320, 192 N.W....