Wackerli v. Martindale
| Decision Date | 05 July 1960 |
| Docket Number | No. 8835,8835 |
| Citation | 82 Idaho 400,353 P.2d 782 |
| Court | Idaho Supreme Court |
| Parties | E. A. WACKERLI and I. R. Clayton, d/b/a Wackerli & Company, Plaintiffs and Appellants, v. Vearold E. MARTINDALE and Marie Martindale, Defendants and Respondents. |
A. A. Merill, Idaho Falls, for appellants.
Holden, Holden & Kidwell, Idaho Falls, for respondents.
Plaintiffs (appellants) instituted this action seeking recovery of a real estate broker's commission allegedly earned through their efforts in producing a purchaser for respondents' ranch located in Fremont County, Idaho.
Appellants in their amended complaint allege that the respondents, husband and wife, owners of certain real property, made, executed and delivered their written agreement, Exhibit, 'A', entitled 'Real Estate Broker's Employment contract', authorizing appellants to sell respondents' ranch at a price of $68,000, and that appellants were to receive 5% as their commission. Exhibit 'A' was signed only by the husband. Appellants also allege that because the number of cultivated acres of respondents' ranch did not conform to that represented in exhibit 'A', it was necessary that the selling price be reduced. Accordingly, on April 20, 1959, exhibit 'B' entitled: 'Receipt and Agreement to Purchase', was entered into by the parties, being executed by both respondents, the portion pertinent herein providing:
'For valuable consideration I/we agree to sell and convey to the Purchaser the above described property on the terms and conditions hereinabove stated and agree to pay to the above named agent a commission of Three Thousand and no/100 ($3,000.00) Dollars for services rendered in this transaction. I/we acknowledge receipt of a copy of the earnest money receipt bearing my/our signature and that of the Purchaser named above. In case the Purchaser fails to comply with any of the conditions of this Agreement, then one-half of the earnest money receipted for shall be retained by the broker, provided the amount to the broker does not exceed the agreed upon commission due and the balance shall be paid to the undersigned.
'Dated this 20th day of April, 1959.
'/s/ Vearold E. Martindale
'Purchasers must sign this offer by April 21, 1959 or offer is void.'
When respondents signed the foregoing exhibit 'B', the purchasers had not signed it. Appellants then allege that respondents were informed by appellants that the latter would take exhibit 'B' to Fremont County the next morning (April 21, 1959) to obtain the purchasers' signatures and, that prior to leaving the next day, appellants were approached by respondent Vearold E. Martindale, and informed he had changed his mind, did not want to sell said ranch and would not be bound by the terms of exhibit 'B'.
Respondents moved to dismiss the amended complaint on the ground of failure to state sufficient facts upon which relief could be granted. The trial court granted respondents' motion and entered its order dismissing the amended complaint without leave to amend, from which order appellants perfected this appeal. On appeal counsel have differed on construction of the phrase inserted in Exhibit 'B' 'Purchasers must sign this offer by April 21, 1959, or offer is void:' appellants' contention being that the phrase does not create any duty of procuring the purchasers' signatures, but that their obligation was merely to find the buyer ready, willing and able to purchase, and that appellants' offer to procure the signature was nothing more than a mere act of courtesy. Respondents, on the other hand, contend that the phrase establishes a condition precedent to their liability to pay the commission, and the condition not having been fulfilled, the action was properly dismissed.
The motion to dismiss presented under IRCP 12(b)(6), has generally been viewed with disfavor because of the possible waste of time in case of reversal of a dismissal of the action, and because the primary objective of the law is to obtain a determination of the merits of the claim. Rennie & Laughlin, Inc. v. Chrysler Corp., 9 Cir., 1957, 242 F.2d 208; 1 A Barron & Holtzoff's Federal Practice and Procedure 360, § 356, states the rule as follows:
'All that is required in the complaint is a generalized statement of facts from which the defendant may form a responsive pleading.--Even though the court may believe that the plaintiff will ultimately be unable to prove the allegations of his complaint, the complaint should not be dismissed so long as there is any possibility that the plaintiff will ultimately prevail.'
Thus, even assuming,...
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...plaintiff can prove no set of facts in support of [the] claim which would entitle [the plaintiff] to relief." Wackerli v. Martindale, 82 Idaho 400, 405, 353 P.2d 782, 787 (1960); Orthman v. Idaho Power Co., 126 Idaho 960, 962, 895 P.2d 561, 563 It need not appear that the plaintiff can obta......
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