*1 .664 claim, superior though judgment uit
Diggins maintains that even also buyer court is affirmed. produce a who was he failed to purchase “willing and able to terms Affirmed. listing,” produce purchasers he did FITZGERALD, ac- made a counter offer which was J., participating. latter cepted by when the the Johnsons Diggins agreement purchase.
signed the $10,000 that he thus “earned”
contends theory
commission, under a presumably meruit, implied quasi-contract or
quantum accept-
contract; Appellees that “when the terms, purchase price different
ed the Appellees thereby 'liable for became Harry CHRISTIAN, Appellant, Rex payment disagree. commission.” We v. Alaska, Appellee.
STATE of No. 1626. overwhelming weight authority jurisdictions in other holds that a Supreme Court of Alaska. may real estate broker not recover the val 31, Aug. 1973. in quantum ue of his services meruit when comply spe he has failed to awith statute
cifically requiring written contracts for production pur for the
commissions property.3 policy
chaser real be sensible,
hind majority view is for to
permit compensation a broker to recover quasi-contract, implied- virtue aof agreement,
in-law would be to undermine purpose of the statute of frauds. case,
the instant we decline to circumvent salutary legislative requirement
agreements authorizing a broker to sell
real estate for a commission must be
writing. superior that the We hold failing
committed no error to award a
$10,000 commission to under a
quantum meruit theory.
Since we have concluded Diggins
was not entitled ato commission under the
expired listing agreement, that the commis- provisions
sion agreement pur-
chase were unenforceable under the statute
frauds,
legislative policy
and that the
quantum
statute of frauds bars a
mer-
See,
g.,
Monsky,
Rptr.
(1963) ;
e.
534,
v.
Louisville Trust Co.
Ekelman
William Fuld, Kelly, Anchorage, ap- Christie & pellant. Gen., Hickey, Atty. Daniel Asst. W. Ju-
neau, Stephen Dunning, Atty., Dist. Asst. Buckalew, Atty., An- Jr., Seaborn Dist. J. Gen., chorage, Havelock, Atty. E. John Juneau, appellee. RABINOWITZ, J., Before C. CONNOR, BOÓCHEVER, ERWIN JJ. prosecution Evidence adduced
OPINION
early
spring
shows that
this case
CONNOR, Justice.
state, through Trooper Edward
trial,
convicted,
jury
after
Appellant was
Harter, began
physical
examination of
making a
knowingly
of the offense of
subject
the vehicle which was
of Count
*3
a
vehicle
for motor
application
fraudulent
white,
indictment,
green
a
and
I of the
of
28.10.-
in
certificate
violation
AS
title
pickup
Trooper
three-quarter
ton
truck.
the
(1)
asserts that
appeal
he
600.1
this
investigation
Harter
con-
commenced the
defective,
certain evidence
(2)
indictment is
Faulk,
time
tacting David
who at the
was
unlawful
of an
at trial was
result
used
registered
and had title free of
owner
seizure, and
(3)
search and
sentence
any
Appellant had
liens.
sold
truck to
imposedwas excessive.
obtaining a
of title
Faulk after
certificate
3, 1971.
Appellant
indicted on
state
he rebuilt
by representing to the
that
June
indictment,
on which
Count
Harter
not com-
the vehicle. Since
could
obtained, reads
follows:
conviction was
as
proper
plete the examination without
bring the
equipment, he asked that Faulk
May,
day
“That
the 19th
of
on or about
examina-
for further
vehicle to
office
1970,
in
Anchorage,
or
the Third
at
near
called him
Faulk did
Harter later
tion.
so.
District,
Alaska, Harry
State of
Judicial
further tests.
requested
and
time to make
knowingly
false
did
make
Rex Christian
troopers
Faulk
Harter that
state
told
statements,
facts or oth-
conceal material
have the vehicle “forever”.
could
application
for
erwise commit fraud
registration
procuring
aof
vehicle
claimed that the
Subsequently, Christian
no.
of
certification of title
State Alaska
de-
belonged to him:
Faulk had
truck
35990.”
payments, and had returned the
faulted on
18,
May
On
title documents to Christian.
appellant
Before trial
moved
dismiss
indicted, appellant
1971,
he
before
had been
indictment
failure to
an of-
for
state
requested
return of the truck
by letter
He
particularity.
with sufficient
fense
troopers
troopers. The
the state
from
asking
particulars
bill
moved for a
also
14, 1971,
dated
by
refused
a letter
place
for the time and
fraudulent
June
the indictment had
written after
which was
indictment,
alleged
statements
formally
Appellant
moved
been returned.
person to
were
those statements
whom
17,
property on
the return of his
for
made,
containing
writings
the particular
June
1971,
holding of the
stating that continued
statements,
false
those
and a list of each
illegal
a
and constituted
seiz-
truck was
and
material
statement
each
fact.
ure.
superior
the motion to
court denied
1,
motion,
hearing
July
on the
At the
granted
the bill
dismiss
indictment but
for not
gave
the state
two reasons
particulars.
filed
bill of
The state
a
it
(1)
feared destruc-
returning the vehicle:
particulars
and attached certain bills
to be return-
if it were
tion of the evidence
had
appellant
parts
sale for
truck
investigat-
appellant,
(2)
and
ed to
by
an
purchased,
claimed he
and
affidavit
respect to
possible crime with
ing another
from
had
the truck
appellant that he
rebuilt
claim-
vehicle,
Appellant
namely, theft.
this
parts
pieces. Appellant still
and
various
ownership, al-
equitable
legal
ed both
objected
specificity
to the lack of
appropriate mo-
filed the
though
had not
indictment.
a fraud
provides
material fact or otherwise commits
as follows:
AS 28.10.600
registration
guilty
fraudulently
application
person
false
in. an
a
“A
who
uses
punish-
felony,
upon
application
conviction is
a
in an
fictitious name
or
by imprisonment
than one
registration
for not less
a cer-
able
year
of a vehicle or
by
years,
or
a
knowingly
two
title,
more than
a
nor
makes
tificate
or
$2,000,
knowingly
than
both.”
fine
not more
conceals
false statement
charged
of title to
the commission of the
forms for transfer
offense
tor vehicle
disjunctive form,
proof
failing
give
thus
Appellant did
offer
himself.
testimony
appellant
specific
at that
ownership
explicit
time.
statement
witness, Trooper
brought
prepared
forth one
state
case
should have been
Harter,
that the Director of
argues
who testified
to meet. The
that the
state
indict-
had
charged only
crime,
the Division of Motor Vehicles
recalled
ment
one
committed
this truck and
registration
methods,
title and
alternative
was not
Department
investigator
from
charge,
misled as
the nature
attempted
seize the
had
sufficiently specif-
Revenue
that the indictment was
from
registration
certificates
plea
title
ic to
judgment
enable
Faulk,
longer had the title
said he no
any
bar
prosecution
future
for the same
papers
given
and had
them
Christian.
offense.
*4
whether
trial
did not determine
adopted
Under
tests
in Adkins
ownership rights. He denied
had
Christian
State,
1964),
v.
(Alaska
Although Faulk admitted on cross-exam- whether amined in to determine order the title certifi- ination that he surrendered may be made.” plea jeopardy of former making further cate to Christian in lieu of at bar in the case produced The evidence truck, not indi- payments on the Faulk did against specific protect sufficiently thereby cate that intended to return of the dou prosecution violative double Furthermore, evi- no truck to Christian. constitu prohibitions of our jeopardy ble dence at trial that Faulk had was adduced tion. signed over to Chris- the title certificate only problems If these were subsequently regis-
tian or that Christian summa appeal would presented in this we in his tered the truck own name. this claim rily as to affirm the conviction presented with But are of error. we merely question, alluded additional
Appellant
asserts that
the indict
requires consideration.
appellant,
ment
which
fatally
defective because it
alone,
obtain
standing
is
warrant or to
indictment,
search
Although the
defective,
consent to
searches.
combination
fatally
to the
and the instructions
indictment
assume,
deciding, that
will
without
We
whether
may present
question of
jury
object to
standing to
has
unani
intelligibly
rendered
jury
search
vehicle.
State, 442
Drahosh v.
verdict. See
mous
par
It
where
third
true that
People v. Sco
(Alaska 1968) and
P.2d
Faulk,
ty, here Mr.
to a search or
consents
(1928).
field,
670 weighed one of factors to in the did several be question be no seems to particular justice. Even one unreasona dan- scale represent general or not bly may suscep maintains his innocence be community, light of his hav- ger tible of rehabilitation a means short of this of- ing and convicted been detected may Although maximum sentence.6 presentence report not The does fense. emotionally psychologically be unable to appel- directly question deal with may still be guilt completely, concede than to his potential, other lant’s rehabilitation possible bring about a reformation he would re- express the belief that not through proba in the future supervision in conduct spond probationary view proba fact claiming very tion. that he persistence of his innocence is an status, tionary and that incarceration the offense. enough to may present potentiality, ever be problem presented in this sen make a critical difference. appeal yield easy not tence does solu policy give It is our tion. considerable imposing sen believe We leeway sentencing discretion placed emphasis much tence too here judge. Chaney, State v. P.2d enough not attention punishment, and (Alaska 1970). hand, ap theOn other po given appellant’s rehabilitation pellate effective, review to be we must might Certainly imprisonment tential. some weigh ourselves the factors which properly ordered, grant just as a properly be enter into the determination of the sen within complete probation be would Only tence. manner can this we be as But we do trial discretion. court’s sured that the limits sound discretion call find this case which circumstances have been observed. virtual maximum sen imposing Certainly unwilling the offender’s with ex legitimate concern tence. The accept ness to criminal responsibility can community pressing condemnation and should be taken into account out wrongful have conduct should not sentencing But only court. it should sentencing be so com- weighed factors other people occurred, definite why I think because don’t can he’s I feel he—what just say, sorry, just away trying stop insight I’m got walk to do a lot of that, well, perhaps and think people that’s it. think and realize that to con Supreme accept responsibility I’m—I what got follow our as of Court he’s accept Chaney, ago has said in oh, versus State there’s he didn’t a week about got punishment responsibility some and rehabilita- when he was when wr— only thing tion isn’t the talking and I think Mr. obvious. Davis. This is to Mr. *7 got punished Christian has may to be I’m do some- to The thing wrong, have caused him state going accordingly. buy.” to him sentence I—it I can’t going is his first offense. I’m to sentence may passing be unrea- in that it 6. We note years by him to 2 the at —recommended guilt expect an offender to admit sonable to probation department and rather than let appeal. circum- is on such when his case years going him servo 2 the entire I’m guilt should think the denial of stances we to recommend serve one-third against weighing aas factor not be considered eligible probation. of and then be for probation. going I’m him also fine A Thousand Chaney, ($1,000.00). Dollars very expensive I think in a 7. As we State v. this was observed (Alaska 1970) case for the : state which P.2d by 12], I, caused Mr. I [art. § Christian. think he “Under Alaska’s Constitution given period year principles be neces- can a of a of reformation and after his the public pay sity ($1,- protecting the release to the the Thousand Dollars constitute 000.00). say penal Mul- It’s—as I it’s a administration. first offense touchstones encompassed perhaps problems tiple goals these there’s some are within sentence, arise because of this I think Within but constitutional standards. broad problems phraseology these are that were caused the this constitutional ambit of objectives Christian. I’m not convinced that of rehabilitation Mr. are the found necessarily agree member in —I don’t a with Mr. into noncriminal of the offender society, from offender Davis he should have admitted isolation the during
guilt, reading society prevent in but his statement as to criminal conduct pletely as require the sentence which the discretion of the trial the extent any sentencing hearing. new imposed. was here The focus of the argument state’s for We have decided to reverse the sentence maximum the sentence was that job the superior remand the case to court expertly was so appellant done that for further consideration of professional must be a criminal—the worst possible through rehabilitation either a class of offender. While there is some probation, shorter sentence or or a combi- testimony expertness as to the in the re- thereof, imposition nation and for of a etc., identifying numbers, moval of and the new sentence.8 reconstruction of one automobile from sev- parts, simply eral there such is no other Conviction affirmed. Sentence reversed support view that and remanded. professional criminal is a and thus is in the worst class criminal offenders. I would ERWIN, therefore vacate the sentence (concurring). trial Justice on for this reason but remand would agree with the discussion of all issues permit state to intro- herein and the remand for further consid- they duce evidence such an if on issue so eration in sentencing but desired. would leave to period confinement, partial 2.4 refers to al- deterrence of Section confinement ternatives, (c) the offender himself after his and subsection thereof states: release from treatment, involving partial penological confinement or other A sentence confinement preferred as well as is deterrence of other members of to be sentence of total community might possess in tenden- confinement the absence of affirmative contrary. cies toward criminal reasons conduct similar to that to the offender, community 2.5(c) specifies: of the condemna- And Section offender, involving tion of the or in A sentence individual other total confinement words, preferred reaffirmation is to of societal norms absence of affirm- purpose maintaining contrary. Examples respect ative reasons to the for the (Footnote omitted.) legitimate norms themselves.” reasons for the selection of total given confinement case are: remand, (i) necessary
8. On the court should consider the Confinement or- relating protect public sentencing standards der to from further alternatives activity by defendant; articulated criminal American Bar Association Project (ii) is in need of cor- Minimum Standards for The defendant Criminal Justice. ef- We find several of rectional treatment which can most the individual worthy particular fectively placed provided standards if he is note: specifies: confinement; Standard 2.2 total imposed unduly depreciate (iii) seri- sentence It would each case should impose custody call for a sen- ousness of offense minimum amount of confinement tence other than total confinement. which is consistent with the protection community hostility hand, public, gravity On the other legitimate basis for offense and the the defendant imposing is not rehabilitative needs confinement. defendant. a sentence of total Project (d) specifies: Mini- Subsection American Bar Association Justice, involving A sentence not mum Sen- confinement is to Standards Criminal *8 preferred (Approved partial tencing involving Alternatives and Procedures sentence 1968). or total Draft confinement in the af- absence of contrary. firmative reasons to the