Taylor v. Unger

Decision Date20 October 1958
Docket NumberNo. 6429,6429
Citation330 P.2d 965,1958 NMSC 120,65 N.M. 3
PartiesElden V. TAYLOR, d/b/a Elden Taylor, Realtor, Plaintiff-Appellant, v. Orlando R. UNGER and Nell R. Unger, his wife, Defendants-Appellees.
CourtNew Mexico Supreme Court

Paul E. Keefe, Albuquerque, for appellant.

Julian S. Ertz, Albuquerque, for appellees.

COMPTON, Justice.

Appellant, plaintiff below, appeals from an order dismissing his complaint in which he seeks to recover broker's commission for services rendered appellees.

The decisive question is whether the action is barred by reason of the provision of Section 70-1-43, New Mexico Statutes Annotated, which reads:

'Any agreement entered into subsequent to the first day of July, 1949 authorizing or employing an agent or broker to purchase or sell lands, tenements, or hereditaments or any interest in or concerning them, for a commission or other compensation, shall be void unless the agreement, or some memorandum or note thereof shall be in writing and signed by the person to be charged therewith, or some other person thereunto by him lawfully authorized. No such agreement or employment shall be considered exclusive unless specifically so stated therein.'

On August 9, 1954, the parties entered into a written agreement whereby appellant was given exclusive authority for a period of six months to sell Forrest Park Ranch for appellees for a price of $48,000, with a minimum down payment of $15,000 and balance on monthly payments. The agreement further provides:

'We hereby appoint Elden V. Taylor, Realtor, 4210 Central, S.E., Albuquerque, New Mexico, as our agent with the exclusive right to sell for the price and terms heretofore stated or for any lesser price and terms acceptable to me during the next 6 months. (Emphasis ours.)

'We further agree to pay said agent five percent of the selling pricke so accepted, and New Mexico State Sales Tax, on any sale consummated with any party he may have shown said property or negotiated with during term stated, or may be consummated with said party by any person or persons, within ninety (90) days after termination of this contract.'

Timely, on February 5, 1955, appellant found a purchaser, Alan Pope, who made an offer of $46,000 for the property, with a down payment of $5,000, balance payable $300 monthly with interest. The offer was communicated to appellees and the price was acceptable; however, appellees suggested a down payment of $7,000 since they had planned to purchase a new automobile if they made the sale. Pope had previously advised appellant that he would make a cash payment of $7,000 or more if necessary. This fact was also communicated to appellees at the time, and the offer was then acceptable in all respects. Appellees then called their attorney and made an appointment with him for the 8th day of February, 1955, at which time the necessary papers were to be drawn in closing the deal. At the time stated, both appellees and the appellant went to the attorney's office pursuant to the appointment. The deal was explained to the attorney, after which appellees directed him to draw a binder providing for a total sales price of $46,000 $7,000 cash and the balance at the rate of $300 per month, with interest on deferred payments. Appellant was to...

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5 cases
  • Maine v. Garvin
    • United States
    • New Mexico Supreme Court
    • July 18, 1966
    ...cases cited by defendant can be considered as authority to support the rule. On the other hand, we note our decision in Taylor v. Unger, 65 N.M. 3, 330 P.2d 965, from which we quote the following which would appear to clearly align this court in support of a rule contra to McFadden v. Pyne,......
  • Douglass v. State, Regulation and Licensing Dept.
    • United States
    • Court of Appeals of New Mexico
    • April 16, 1991
  • State ex rel. Miller v. Tackett
    • United States
    • New Mexico Supreme Court
    • May 2, 1961
  • Yrisarri v. Wallis
    • United States
    • New Mexico Supreme Court
    • August 29, 1966
    ...N.M.S.A. 1953, to show an agreement different from the initial written agreement. This issue was raised, but not decided, in Taylor v. Unger, 65 N.M. 3, 330 P.2d 965. The following cases dealt with attempted modification of written agreements for sale of real estate on the basis of subseque......
  • Request a trial to view additional results

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