Selected Listings Co., Inc. v. Humiston

• Decision Date: 01 February 1977
• Docket Number: No. 352-75,352-75
• Citation: 370 A.2d 1297,135 Vt. 106
• Parties: SELECTED LISTINGS COMPANY, INC., d/b/a Selected Listings Company v. Ralph E. HUMISTON.
• Court: Vermont Supreme Court

Page 1297

370 A.2d 1297

135 Vt. 106

SELECTED LISTINGS COMPANY, INC., d/b/a Selected Listings Company v. Ralph E. HUMISTON.

No. 352-75.

Supreme Court of Vermont.

Feb. 1, 1977.

Dick, Hackel & Hull, Rutland, for plaintiff.

Hanford G. Davis, Brandon, for defendant.

Before BARNEY, C. J., DALEY, LARROW and BILLINGS, JJ., and KEYSER, J. (Ret.), Specially Assigned.

BILLINGS, Justice.

This is an appeal from a judgment order of the Rutland Superior Court in a contract action. Judgment was ordered in the amount of $3,000.00 with interest.

In 1973, Thomas Stark contacted Selected Listings Company through its licensed real estate salesman, James Kaufman, Jr., to assist him in obtaining a residence in the Ludlow area. Having no listed residence satisfactory to Stark, Kaufman suggested that Stark consider the purchase of a modular house for erection on a building lot. Eventually, Stark purchased a building lot through Selected, and Kaufman arranged for Stark to visit a modular house owned by a real estate agent-dealer in modular houses, Ralph Humiston, the defendant-appellant. Stark and Humiston later met several times about the matter, Kaufman was also present on some of these occasions.

In May, 1973, Kaufman and Humiston discussed the payment to Selected of a commission of ten per cent of the gross price of the modular house installed upon Stark's lot. On May 31, 1973, Kaufman wrote Humiston a letter concerning payment of the commission upon closing of the sale of the modular house. The letter stated his understanding subject to Humiston's disagreement. In July, 1973, Humiston called Kaufman and explained that a statement of the total cost of the modular house must be presented by Stark to the bank where he was obtaining a loan for the purchase, and that the itemized statement must include the commission, if that cost was to be a part of the loan advanced by the bank. Stark was present in Kaufman's office and gave his approval for its inclusion. On July 11, 1973, Humiston gave Stark, by letter, an itemized statement of the total cost of the modular house erected and ready for occupancy. The statement included a $3,000.00 commission to 'the selling office'. The modular house was subsequently erected and Selected wrote Humiston in December, 1973, requesting payment of its commission. Humiston replied in January, 1974, denying any obligation to pay.

The modular house was delivered and erected at a total cost of $29,806.51. The Vermont Federal Savings and Loan Association approved a loan to Stark of $35,200.00 and a credit balance remains to his account. Humiston has been paid $29,100.00. Neither Selected nor Kaufman has received any commission.

The defendant-appellant Humiston argues that the commission was for the sale of a modular house erected and ready for occupancy, which constituties a sale of real estate, and because the plaintiff-appellee is a licensed real estate agency, Rule 16(2) of the Vermont Real Estate Commission applies and requires a written listing agreement for the contractual relationship to be enforceable.

(2) Every listing agreement shall be in writing. It shall contain a clear and definite statement of the commission to be allowed the agent. It shall contain a clear and definite provision for its termination, properly identify the property, and contain all the terms and conditions of the sale and the termination date. It shall show the signature of all parties concerned. (If a listing is exclusive, or gives the agent the exclusive right to sell, it must have Exclusive Listing and/ or Exclusive Right to Sell in BOLD FACE TYPE.) All listings shall show the commission to be paid in percentage figures. Copies of listing agreements at the time they are executed shall be placed in the hands of all parties involved.

See Green Mountain Realty, Inc. v. Fish, 133 Vt. 296, 299, 336 A.2d 187, 189 (1975).

The appellant recognizes that a modular house might be classified as personal property but argues that this commission is claimed to be due for the sale of a modular house completely erected and ready for occupancy with the commission based on a ready-for-occupancy condition and as such must be considered a real estate transaction. By analogy he cites In re Willey, 120 Vt. 359, 140 A.2d 11 (1958).

We believe that the better view is that the transaction between Kaufman and Humiston involved personal property but, more importantly, was in the nature of a finder's agreement and was not a sales transaction.

This holding is consistent with In re Willey, supra, which concerned the status of a mobile home situated on a lot. Neither party argues that a modular home erected on a building lot is other than real estate. The crucial issue here is timing; this agreement was to bring a prospective buyer and a seller together concerning property as yet unattached to the land,...