Weitting v. McFeeters

• Decision Date: 03 March 1981
• Docket Number: Docket Nos. 48012,48060,48165
• Citation: 104 Mich.App. 188,304 N.W.2d 525
• Parties: Donald D. WEITTING and Linda L. Weitting, Plaintiffs-Appellees, v. Lucinda McFEETERS, Defendant, Cross-Defendant Appellant, and John M. FAIR, Defendant, Cross-Plaintiff Appellee, v. Peggy J. WALTERS, as survivor of herself and Raymond E. Walters, Deceased, andRichard F. Osborn, Third Party Defendants, Donald D. WEITTING and Linda L. Weitting, Plaintiffs-Appellees, v. Lucinda McFEETERS, Defendant, Cross-Defendant, and John M. FAIR, Defendant, Cross-Plaintiff Appellee, v. Peggy J. WALTERS, as survivor of herself and Raymond E. Walters, Deceased,Third Party Defendants, and Richard F. Osborn, Third Party Defendant-Appellant, Donald D. WEITTING and Linda L. Weitting, Plaintiffs-Appellees, v. Lucinda McFEETERS, Defendant, Cross-Defendant, and John M. FAIR, Defendant, Cross-Plaintiff Appellee, v. Peggy J. WALTERS, as survivor of a tenancy by the entireties of herself andRaymond E. Walters, Deceased, Third Party Defendants-Appellants, and Richard F. Osborn, Third Party Defendant. 104 Mich.App. 188, 304 N.W.2d 525
• Court: Court of Appeal of Michigan — District of US

Page 525

304 N.W.2d 525

Donald D. WEITTING and Linda L. Weitting, Plaintiffs-Appellees, v. Lucinda McFEETERS, Defendant, Cross-Defendant Appellant, and John M. FAIR, Defendant, Cross-Plaintiff Appellee, v. Peggy J. WALTERS, as survivor of herself and Raymond E.

Walters, Deceased, andRichard F. Osborn, Third

Party Defendants, Donald D. WEITTING and Linda L. Weitting, Plaintiffs-Appellees, v. Lucinda McFEETERS, Defendant, Cross-Defendant, and John M. FAIR, Defendant, Cross-Plaintiff Appellee, v. Peggy J. WALTERS, as survivor of herself and Raymond E.

Walters, Deceased,Third Party Defendants,

and

Richard F. Osborn, Third Party Defendant-Appellant, Donald D. WEITTING and Linda L. Weitting, Plaintiffs-Appellees, v. Lucinda McFEETERS, Defendant, Cross-Defendant, and John M. FAIR, Defendant, Cross-Plaintiff Appellee,

v.

Peggy J. WALTERS, as survivor of a tenancy by the entireties

of herself andRaymond E. Walters, Deceased, Third

Party Defendants-Appellants,

and

Richard F. Osborn, Third Party Defendant.

Docket Nos. 48012, 48060, 48165.

104 Mich.App. 188, 304 N.W.2d 525

Court of Appeals of Michigan.

March 3, 1981.

Released for Publication April 30, 1981.

[104 MICHAPP 191] Harold E. Fischer, Jr., Kalamazoo, for McFeeters, in 48012.

James H. Geary, Kalamazoo, for Walters, in 48165.

Paul Z. Domeny, Kalamazoo, for Osborn, in 48060.

Robert D. Mollhagen, Vicksburg, for Weitting.

Vincent T. Early, Kalamazoo, for McFeeters in 48060 & 48165.

Howard J. Bush, Sturgis, for Fair.

Before ALLEN, P. J., J. H. GILLIS and WALSH, JJ.

ALLEN, Presiding Judge.

Plaintiffs (Weitting), the unsuccessful buyers of a 125 acre farm and buildings, sued defendant (McFeeters), the former owner and seller of the farm, her broker (Fair), the successful purchasers and present occupants of the farm (Walters), and their broker (Osborn) for breach of contract and for tortious interference. Fair, as cross-plaintiff, sued McFeeters as cross-defendant for the commission for the alleged sale of the property to plaintiffs. On August 16, 1979, the trial court denied various motions for accelerated and summary judgment. Appeal on a concise statement of proceedings and facts certified by the trial court comes to us by leave granted. A summary of the concise statement of facts follows:

In February, 1977, Lucinda McFeeters, the then owner of a 125-acre farm in St. Joseph County, [104 MICHAPP 192] entered into an exclusive listing agreement with John M. Fair, a real estate broker, to sell the farm for $80,000 with possession of the land and buildings to be given at closing. The agreement provided that Fair would be paid a 6% commission if he procured a buyer within six months. On April 16, 1977, plaintiffs, Donald and Linda Weitting, signed an offer to purchase the McFeeters farm for $80,000 and gave Fair a $1,000 deposit. The offer to purchase provided that sale was to be closed on or before May 18, 1977, with possession to be given "land, day this agreement is signed, buildings, 30 days after closing". The purchase offer was signed by the Weittings and witnessed but was not signed by Lucinda McFeeters although her name was typed under the signature line on the printed form indicating the seller's acceptance. Nevertheless, despite the absence of Mrs. McFeeters' signature, it is alleged that Fair, by virtue of the exclusive listing agreement, had authority to accept the offer and did accept said offer thereby binding McFeeters to the sale of her farm.

On April 21, 1977, McFeeters notified Fair by registered mail, return receipt requested, that she was terminating the listing agreement. The return receipt indicates Fair received the notice to terminate on April 22nd. Also, on April 21st, Fair, having been unable to contact McFeeters for three days after April 16th, sent McFeeters a letter by registered mail, return receipt requested, informing her of the Weittings' offer to purchase. The return receipt indicates that McFeeters received this letter April 27th. Thereafter, Richard F. Osborn, a realtor and third-party defendant, arranged for the sale of the farm to third-party defendants Peggy and Raymond Walters. At the time this sale was completed, the Walterses allegedly[104 MICHAPP 193] knew of the Weittings' prior offer to purchase and knew that Fair had stated that the farm had been sold to the Weittings. Nevertheless, the sale was completed by deed signed May 6 and recorded May 17, 1977.

Plaintiffs' second amended complaint contains five counts. Counts I through IV are directed against defendants McFeeters and Fair and allege in substance that Fair, by virtue of the exclusive listing agreement, had authority to accept and did accept the Weittings' offer and that, because the offer was accepted, a binding contract came into existence divesting McFeeters of the legal capacity to execute a deed to the Walterses. Counts I through IV request specific performance and other equitable relief which would give plaintiffs possession of the farm. Count V is directed against the third-party defendants, the Walterses and Osborn, alleging that they tortiously interfered with the contract relationship between Fair and McFeeters, said contract having arisen by Fair's alleged authority to accept the offer on behalf of McFeeters. Count V requests money damages from the third-party defendants.

The cross-complaint of Fair, filed subsequently, consists of two counts. Count I alleges that McFeeters breached her listing agreement with Fair and requests specific performance of the Weittings' offer to purchase. Count II is a complaint for money damages against realtor Osborn for tortious interference with the contractual relations between himself and McFeeters.

In the fall of 1978, McFeeters moved for summary judgment on the second amended complaint of plaintiffs and also moved for summary judgment on the cross-complaint of Fair. Likewise, third-party defendants, the Walterses and Osborn [104 MICHAPP 194] moved for summary judgment on the second amended complaint of plaintiffs. All motions set forth multiple grounds, not necessary to detail at this time, for granting summary judgment. Following a hearing held in September, 1978, all motions were denied. Application for leave to appeal was made in this Court which, by order dated March 28, 1979, remanded the case to the trial court for "reconsideration of the motions for summary judgment as to the principal complaint in light of Landskroener v. Henning, 221 Mich. 558, 566-567, 191 N.W. 943 (1923); Theisen v. Folker, 234 Mich. 542, 208 N.W. 700 (1926); Caspar Hoffman Co. v. King, 237 Mich. 9, 211 N.W. 36 (1926), and Goldberg v. Sosnowski, 244 Mich. 515, 221 N.W. 617 (1928)".

Upon remand, all defendants renewed their motions for summary judgment, and affidavits were filed in support thereof. Following a hearing thereon, the trial court issued an opinion dated August 16, 1979, denying all motions. The court stated that a material question of fact existed as to whether knowledge by defendants of plaintiffs' offer to purchase would support a cause of action for tortious interference with a business or contractual relationship. This Court granted leave to appeal April 30, 1980.

From the foregoing, necessarily prolongated, statement of facts, three issues emerge. (I) Did the offer of purchase and the acceptance of the down payment by Fair constitute a binding contract for the sale of land by McFeeters to plaintiffs? If, as a matter of law, it did not, the trial court erred in not granting summary judgment in favor of McFeeters. (II) Did third party defendants tortiously interfere with a business relationship between plaintiffs and McFeeters? If, as a matter of law, they did not, the trial court erred in not granting [104 MICHAPP 195] summary judgment in favor of third parties. (III) Is Fair entitled to a real estate commission from McFeeters? If, as a matter of law, he is not so entitled, the trial court erred in not granting summary judgment to McFeeters on Fair's cross-complaint. But if the trial court did not err on issue III, then a fourth issue arises as to whether trial should continue in circuit court or be transferred to district court.

I

It is plaintiffs' claim that even though McFeeters did not sign the purchase agreement the exclusive listing agreement conferred authority on Fair to bind McFeeters. Plaintiffs point to the fact that the listing agreement specifically gives the broker the power to collect payments for his client and contend that this language confers upon the broker authority to conclude a sale even in the client's absence. It is true that a real estate broker, employed to make a sale of real estate, has no authority to collect payments unless specially authorized to do so. 8 Am.Jur., Brokers, § 59, pp. 1016-1020, Triphagen v. Labbe, 332 Mich. 583, 586, 52 N.W.2d 226 (1952). But the limited authority to accept special deposits does not confer the additional special authority required to bind the principal to a sale. The four cases mentioned in this Court's order remanding this case to the trial court clearly hold that, in the absence of explicit language granting the power, a listing agreement does not confer authority on the broker to bind his principal to a contract for the sale of land. In Sosnowski, supra, 244 Mich. 516, 221 N.W. 617, where the listing agreement contained the language "accept a deposit to be applied on the purchase price and to bind the sale * * *" (emphasis supplied), the Court held the [104 MICHAPP 196] language sufficient to bind the principal. But in Triphagen, supra, where the language only gave power to the broker to accept deposit monies, the Court held that authority to bind the principal had not been granted. Nothing in the listing agreement specifically confers upon Fair the requisite authority to bind McFeeters to an offer to purchase without further action on her part. There being no contract binding McFeeters to sell the land, we hold that the trial court erred...