Tucker v. Green, 7706
| Decision Date | 23 October 1964 |
| Docket Number | No. 7706,7706 |
| Parties | Lloyd TUCKER and Shirley M. Tucker, husband and wife, Appellants, v. J. H. GREEN, dba Green Real Estate, and Wanda Chinn, dba Chinn Realty, and Mike Chinn, husband of Wanda Chinn, Appellees. |
| Court | Arizona Supreme Court |
Minne & Sorenson, by A. D. Ward, Phoenix, for appellants.
Stephen W. Connors, Phoenix, for appellees.
The parties will be referred to as plaintiffs and defendants as they appeared in the lower court.
This is an appeal from a judgment for the plaintiffs for the amount claimed to be due as a real estate commission contended to have been earned by the plaintiffs as the procuring cause of the sale of the defendants' property. The case was tried to a jury. The jury found for the plaintiffs on conflicting testimony.
The facts taken most strongly in favor of sustaining the judgment are:
The defendant Lloyd Tucker, husband of Shirley M. Tucker, executed and delivered to plaintiff Green a listing for the sale of the community real property of the defendants. The listing was not exclusive, and, after setting forth a description of the property and the terms at which it was to be offered for sale, closes with the following words: 'If the above described property is sold by the Green Real Estate, I (we) agree to pay a commission of 5% on the total sales price.' The plaintiff Green, after having been advised by the plaintiff Chinn that one Weiler was in the market for the purchase of some real property, contacted said Weiler, discussed the possibility of his being interested in the Green property and interested him therein as a purchaser. Until then, Weiler had no knowledge of the availability of the property for purchase. Weiler declined the offer of Green to show him the property on the grounds that he was then too busy, but subsequently Weiler personally contacted the defendants Tucker, examined the property and, after some negotiation, purchased the same on substantially different terms, but for the same gross purchase price, at which the property was listed for sale by Tucker with Green. During the interim, between the time Weiler had been contacted by Green and the setting up of an escrow for the purpose of closing the sale, Green had contacted Weiler on several occasions and reminded him of the fact that Green expected to collect a commission in the event Weiler purchased the property. After the escrow was set up, and before the final closing took place, Green advised defendants Tucker that he had initiated Weiler's interest in the purchase of the property. The terms of the purchase and sale finally negotiated by Weiler and Tucker were not in all respects identical to the terms at which the property was listed with Green.
We need to consider no questions raised on the appeal other than those contained in assignments of error numbered 1 and 3. Assignment of Error No. 1, in addition to other things, contends that the defendants were entitled to a directed verdict and judgment in their favor as a matter of law because there was no substantial evidence that (1) prior to entering into the agreement to sell the defendants had knowledge that their prospective purchasers had been produced by the plaintiffs; (2) that the defendants sold to said purchasers on the same or as favorable terms as were set out in the listing agreement; or (3) that they would have sold on the terms they did had they known that a commission was demandable. Assignment of Error No. 3, among other things, challenges the refusal of the trial court to give defendants' instruction No. 5 submitting to the jury the question of whether the defendants (sellers) negotiated with their buyers in good faith with no knowledge that they were dealing with a prospective purchaser procured by the plaintiffs, and that said dealings were on the basis that no commission was demandable.
We have held that in order for a broker to recover a commission on the basis of compliance with the requirements of an open listing agreement, he must show that he produced a buyer ready, willing and able to purchase on the precise terms stipulated by the seller in his listing agreement. Of course, a change made by the seller, when consummating the sale, in the price of the land or the terms of the sale from those specified in the broker's listing agreement, cannot of itself affect or impair in any way the right of the broker to his commission. Bishop v. Norell, 88 Ariz. 148, 353 P.2d 1022. We have also held that if the owner of the property before consummating a deal acquires the knowledge--it matters not in what manner--that the person he is dealing with is the...
To continue reading
Request your trial
-
State v. Hasty
...be bound by the reasonable and logical implications of his action, thereby foreclosing an appeal is immaterial.' (193 Kan. 1. c. 670, 671, 396 P.2d 1. c. In State v. Baier, supra, it was said: 'The record further reflects that when sentence was pronounced by the trial court, defendant reque......
-
Bear Kaufman Realty, Inc. v. Spec Development, Inc.
...property with knowledge that the agent had procured the ultimate purchaser, viz., show the seller acted in bad faith); Tucker v. Green (1964), 96 Ariz. 371, 396 P.2d 1 (" * * * it would appear that in fairness to his principal the broker should advise his principal that he had produced the ......
-
Bass Inv. Co. v. Banner Realty, Inc., 9056--P
...willing to sell to that buyer. Lockett v. Drake, 43 Ariz. 357, 31 P.2d 499; Fink v. Williamson, 62 Ariz. 379, 158 P.2d 159; Tucker v. Green, 96 Ariz. 371, 396 P.2d 1. In Fornara v. Wolpe, 26 Ariz. 383, 226 P. 203, we '* * * While the pleading and proof are that appellee was given certain te......