Shields & Co., Inc. v. Green
| Decision Date | 20 February 1980 |
| Docket Number | No. 12690,12690 |
| Citation | 100 Idaho 879,606 P.2d 983 |
| Court | Idaho Supreme Court |
| Parties | SHIELDS & COMPANY, INC., an Idaho Corporation, Plaintiff-Appellant, v. Dover GREEN and Evelyn Green, husband and wife, Defendants-Respondents. |
Jon N. Wyman, of Wyman & Wyman, Boise, for plaintiff-appellant.
Ronald P. Rainey, of Alexanderson, Davis, Rainey & Whitney, Caldwell, for defendants-respondents.
Plaintiff-appellant, Shields & Company, seeks to recover a real estate broker's commission in the amount of $4,080, plus interest, on the basis of a listing agreement signed by defendant-respondent Dover Green and an earnest money agreement signed by both Dover Green and his wife Evelyn. After two previous mistrials, the case was tried to a jury. The trial court excluded from evidence both the listing agreement and the earnest money agreement the first because it violated the rules and regulations of the Idaho Real Estate Commission by not containing a proper description, the second because it did not contain a description sufficient to show that the parties agreed to what property, if any, was to be sold.
At the end of Shields' case, the Greens moved for a nonsuit, or alternatively, a directed verdict. The trial court granted their motion for directed verdict under I.R.C.P. 50(a) and Shields then moved for a new trial. The lower court denied the motion for new trial on the basis that Shields' request for oral argument was not stated on the face of the motion under I.R.C.P. 7(b)(3). Shields then moved to set aside the order which denied a new trial, claiming that the clerk of the court failed to give him a hearing date on his new motion and that oral argument had been requested on the face of the notice of hearing. This motion was also denied by the district court and Shields now appeals from all three adverse orders. We reverse the orders of the district court and remand for new trial.
Shields and Company, Inc., is a real estate brokerage firm operating in Idaho. In 1973, Todd Tracy, an experienced real estate salesman, was employed as a licensed salesman with Shields. Tracy began general conversation with Dover Green about the sale of an eighty acre piece of farm property south of Nampa which the Greens were purchasing on contract and on which they resided and farmed.
On August 29, 1973, Tracy showed the Green property to Wade Hicks, a building contractor whom Tracy had known for about four years. Tracy told Hicks there was a possibility that Green would want to reserve from sale the acreage on which he lived, and a 10 acre area on the west side of the property. This left approximately 68 acres available for sale.
After these negotiations with Hicks, Tracy approached Green and asked Green to sign a listing on the property for a thirty day period. According to Green, Tracy requested that he sign the listing so that Tracy could show his boss some work product. Green signed the listing agreement, but his wife did not.
The listing agreement showed a handwritten legal description which comprised eighty acres. The legal description stated that the land was in Canyon County even though the form language stated the property was in Ada County. The agreement did not set fourth boundaries for marking off 68 acres, the portion of Green's property listed as being for sale. Other than a purchase price of $68,000, a brokerage fee of 6% Of the purchase price and a location described as "Deer Flat & Robinson Road," all other terms were left blank.
Anticipating a sale of the property to Hicks, Tracy prepared two drafts of an earnest money agreement, but neither of these was signed by the Greens. On the evening of August 30, 1973, Tracy brought a third version of the earnest money agreement to the Green residence. According to Green, Tracy told him that he had five days to look it over and make any changes he desired. Tracy just told him to sign it so that he and Hicks could get out of the Greens' way and allow them to have dinner. Throughout the trial, Green stated that his conversations with Tracy were always in terms of "if he ever sold." Mrs. Green testified that she signed the agreement even though she had not read it and had no intention of selling the property.
After dinner, Green read the agreement, realized that it did not represent what had been discussed with Tracy, and tried unsuccessfully to contact Tracy. Green then contacted Hicks and told him the terms were different from any discussed with Tracy.
The earnest money agreement provided a legal description of the Green property as an 80 acre tract. It then reduced the 80 acres to 68 acres by means of a "consisting of" clause, without any guidance as to which 68 acres of the 80 were to be sold. The agreement provided that the buyer would assume a pre-existing contract in the amount of $22,000, payable at the rate of $1,000 per year, but no date was provided for payment. A provision requiring the buyer to pay "an additional $4,000 to be paid on or before January 15, 1974," failed to mention whether that amount was payable on the contract or to the seller. The balance of the purchase price was to be paid by the buyer, with $1,000 payable on December 1, 1973 as principal on the $22,000 contract, and paying $2,000 per year thereafter plus interest. Yet the agreement failed to state whether the annual $2,000 payment was to go to the Greens or to the holders of the contract, and it did not provide for a time for annual payment. The agreement also failed to provide for a survey of the property, even though one had been contemplated by the parties in the event of sale.
Ultimately, no sale agreement was ever reached since Hicks never offered terms for sale which Green was willing to accept. The Greens remained contract purchasers of the property and Hicks found another 80 acre parcel to subdivide shortly thereafter. Shields then brought suit for recovery of a broker's commission of 6% Of the $68,000 purchase price, or $4,080. Based on the defects mentioned above, the trial court excluded both the listing agreement and earnest money agreement and directed a verdict in favor of the...
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