Carlsen v. Zane

KERRIGAN, J.

The plaintiffs are copartners and licensed real estate brokers who entered into a 90-day written “exclusive right to sell” agreement with the defendants on January 17, 1965. The agreement contained the following provisions: that the plaintiffs had the exclusive and irrevocable right to sell a 15-acre parcel of unimproved land owned by the defendants until the expiration date of April 17, 1965, for the sum of $3,600 per acre; that the brokers had the right to negotiate

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sales of the 15 acres in separate 5-acre parcels; that the owners agreed to pay the broker 10 percent of the selling price; and that the “owner agrees to pay [the brokers] said percent of the list price if owner withdraws said property from sale ... or otherwise prevents performance hereunder by [the brokers] during the said period of [the] agreement regardless of whether a buyer was or was not obtained. ’ ’

Within the term of the listing agreement, in mid-March 1965, the defendant-owners sold 10 of the 15 acres to a personal friend for the sum of $2,600 per acre, comprising the total sum of $26,000. The remaining five acres were not sold.

Plaintiffs filed suit to recover $5,400 plus interest and attorney fees. The brokers contend that they are entitled to a 10 percent commission of the list price of $54,000 for the entire 15 acres even though the 10-aere parcel was sold by defendants for less than the list price, and 5 acres remained unsold. Defendants countered by filing a cross-complaint for fraud on the ground that the brokers had falsely represented that they had an immediate buyer of 5 acres at the list price of $3,600 per acre prior to the execution of the exclusive listing agreement, which constituted the inducement for signing the listing, and sought recovery of $5,000 exemplary damages.

The trial court found, “That the defendants [stc-plaintiffs] did not, in fact, exercise due diligence in procuring a purchaser . . . even though during the existence of the ‘ exclusive right to sell’ agreement a portion of the land [10 acres] was sold by reason of defendants’ own efforts,” and ruled that plaintiffs were not entitled to recover. The judgment also provided that the defendants take nothing whatsoever by reason of their cross-complaint. No appeal has been taken from the judgment on the cross-action.