Trimmer v. Ludtke

Decision Date22 December 1969
Docket NumberNo. 9668,9668
Citation105 Ariz. 260,462 P.2d 809
PartiesRobert A. TRIMMER and Dorothy Trimmer, his wife; and John W. Trimmer and Edith R. Trimmer, his wife, Appellants, v. George C. LUDTKE, Appellee.
CourtArizona Supreme Court

Choisser & Choisser, Phoenix, for appellants.

Powers & Rehnquist, Phoenix, for appellee.

UDALL, Chief Justice.

We are called upon in this appeal to determine whether a real estate broker's commission was earned. Summary judgment was entered for plaintiff, a real estate broker, in this action for his commission against defendants, the owners of the realty in question.

The following facts are undisputed. On September 22, 1966, defendants executed an open listing agreement with the plaintiff broker, for the sale of their property. On October 5, 1966 plaintiff produced a prospective purchaser, Engine Supply Inc., and a 'purchase contract and receipt' was executed by Engine Supply and defendants. The purchase price was $1,000 down and $65,700 at the close of escrow. The $1,000 was paid and the buyer was to secure a new mortgage on the property for the balance. The purchase contract and receipt provided that the property was to be 'subject to new mortgage to buyers satisfaction'. On October 19, 1966, plaintiff asked defendants to sign blank escrow instructions, which provided in part: 'It is understood and agreed by and between the sellers and buyers herein that the closing of this escrow is contingent upon the buyers being able to secure a new mortgage loan for part of the balance of cash payment. * * *' Defendants refused to sign because Engine Supply had not yet obtained a mortgage commitment.

Around the first week in November defendants sold the property to another buyer, Thompson International, and entered into escrow. This purchaser was brought to defendants' attention by another broker. Defendants then instructed Stewart Title to return the $1,000 deposit to Engine Supply. Thereafter, during November of 1966, Engine Supply secured the execution of formal papers for a new mortgage from The Arizona Bank, notified defendants that it now had the necessary mortgage, and served them with a lawsuit for specific performance of the 'purchase contract and receipt'. As a settlement of this lawsuit, and with the agreement of defendants, Engine Supply and Thompson International tossed a coin to see who would purchase the property. Thompson International won the coin toss and completed the purchase; Engine Supply ceased the litigation. Plaintiff broker, however, brought this action to recover his commission; alleging that he had produced a ready, willing and able buyer and that a resultant binding agreement had been entered into by the parties entitling him to a broker's commission.

While the facts are undisputed, the legal conclusions to be drawn therefrom are not. In order to answer the single issue, whether a commission was earned, we must first determine the nature of this particular 'purchase contract and receipt'; and secondly, determine the effect which defendants' sale of the property to Thompson International had on the open listing agreement with plaintiff.

As to the purchase contract and receipt, it is the general and oft-repeated rule of law, as laid down by this court in Lockett v. Drake, 43 Ariz. 357, at page 360, 31 P.2d 499, at page 500 (1934), that:

'* * * in the absence of a specific contract to the contrary, when a real estate broker has brought together the parties to a sale or exchange of real estate, and they have agreed fully on the terms and entered into a binding contract for such sale or exchange, his duties are at an end and his commission is fully earned, and it is immaterial that the parties to the contract rescind mutually or that one or the other thereof defaults and the sale or exchange is not fully effected.'

It is also the law that if a real estate broker produces a ready, willing and able purchaser according to the terms of the listing agreement, and the seller refuses to enter into a contract of sale with such purchaser, the broker is nevertheless entitled to his commission. In such case the broker has fully performed that for which he was employed and cannot be frustrated by the breach of the listing agreement by the seller.

However, such is not the case here. By the terms of the purchase contract and receipt the sale was conditioned upon the buyer obtaining a new mortgage to its satisfaction. Evidence that this condition existed is also provided in the terms of the escrow instructions which buyer attempted to get defendants to sign. The instructions, as quoted above, include the contingency that the buyer be able to secure a new mortgage loan for part of the cash balance. The principal question raised which is determinative of this case then becomes: Is a broker entitled to a commission for the sale of real property if he procures a conditional purchaser ready, able and willing to buy only...

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16 cases
  • Maxwell v. Fidelity Financial Services, Inc.
    • United States
    • Arizona Supreme Court
    • 21 November 1995
    ...On a record like this, the court has the power to grant an unasserted cross-motion for summary judgment. Trimmer v. Ludtke, 105 Ariz. 260, 263, 462 P.2d 809, 812 (1969) ("[A] judgment on a motion for summary judgment may be either for or against the moving party, even though the opposing pa......
  • Anderson v. Country Life Ins. Co.
    • United States
    • Arizona Court of Appeals
    • 17 November 1994
    ...Bank of New York v. State Farm Fire & Casualty Co., 27 Ariz.App. 522, 526, 556 P.2d 823, 827 (1976); see also Trimmer v. Ludtke, 105 Ariz. 260, 263, 462 P.2d 809, 812 (1969). In exercising our authority to enter summary judgment in favor of the nonmoving party, the Andersons, on the issue o......
  • Giovanelli v. First Federal Sav. and Loan Ass'n of Phoenix, 1
    • United States
    • Arizona Court of Appeals
    • 19 September 1978
    ...may be entered either for or against the moving party, even though the opposing party did not file such a motion. Trimmer v. Ludtke, 105 Ariz. 260, 462 P.2d 809 (1969). Appellants argue that if a lender has received a full payment of a loan, but thereafter causes a portion of the funds to b......
  • Westin Tucson Hotel Co. v. State Dept. of Revenue
    • United States
    • Arizona Court of Appeals
    • 8 April 1997
    ...may be either for or against the moving party, even though the opposing party has not filed such a motion." Trimmer v. Ludtke, 105 Ariz. 260, 263, 462 P.2d 809, 812 (1969) (citing Markel v. Transamerica Title Insurance Company, 103 Ariz. 353, 442 P.2d 97 (1968), overruled on other grounds b......
  • Request a trial to view additional results
2 books & journal articles
  • § 3.3.1.5 Appeals Relating To Summary Judgments.
    • United States
    • State Bar of Arizona Appellate Handbook 6th Edition 2015 Chapter 3 Civil Appeals (§ 3.1 to § 3.18.5)
    • Invalid date
    ...party based on the record then before the trial court, even though the opposing party has not filed such a motion. See Trimmer v. Ludtke, 105 Ariz. 260, 263, 462 P.2d 809, 812 (1969); Johnson v. Collins, 11 Ariz. App. 327, 329 n.1, 464 P.2d 647, 649 n.1 (1970). However, a court should not r......
  • § 3.3.1.5 Appeals Relating To Summary Judgments.
    • United States
    • State Bar of Arizona Appellate Handbook 6th Edition 2015 Chapter 3 Civil Appeals (§ 3.1 to § 3.18.5)
    • Invalid date
    ...party based on the record then before the trial court, even though the opposing party has not filed such a motion. See Trimmer v. Ludtke, 105 Ariz. 260, 263, 462 P.2d 809, 812 (1969); Johnson v. Collins, 11 Ariz. App. 327, 329 n.1, 464 P.2d 647, 649 n.1 (1970). However, a court should not r......

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