*1 deny equal pro- rolls would somehow appear on the assessment sug- I find our federal constitution. in violation tection validly place, unpersuasive. that issue not In the first gestion they signatures If had were counted. case. The presented in this tendered, challenge equal protection an counted and been not here. That did occur to be resolved. would have issue fact, persons community who own from this Aside if the assessment rolls may names on it listed under both have be reflected in title documents. they interests to desire their ineligible sign petition they because Consequently, if are rolls, ineligi- appear on the assessment do not names their bility statutory them rather than be attributed to must legislature. by the wording selected I Respectfully, dissent. GREENBERG, DANIEL B. MAYER deceased, OF
ESTATE individually GREENBERG, and as Executor GREENBERG, GREEN of MAYER RUTH C. Estate CORWIN, BERG, ERIC T. STA LOUIS W. STANIEK, HAYTIN, NIEK, P. HAROLD A. MATTIE GREENBERG, HAYTIN and PHILLIP A. LOIS Respondent. SKURSKI, ANDY Appellants,
No. 10691 November Jemison, Beckley, Singleton, DeLanoy Vegas, & of Las
Appellants. Brothers, Foley Vegas, Respondent. of Las
OPINION Court, Thompson,
By the J.: broker, Skurski, commenced this Andy a licensed real estate group against to recover of an investment members action during negotiations allegedly earned for real commission estate Park. The dis- and of Starlite Industrial the sale judgment for the sum of in favor of Skurski trict entered court joint liability imposed a several $66,875. judgment and That group. investment against the members the members of the found that one of court The district Park, owning Eric Industrial Sta- group the Starlite investment empowered and bind all niek, subagent, for was a members, deal with sell had made a Skurski that Staniek and Moreover, the brothers. to the Janitell the Industrial willing ready, brothers were the Janitell found that court also prescribed purchase the and able possessing substance to is no evidence There sellers. expressed finding. we reverse and reasons hereafter For either appellants-defendants. entry United direct Hildreth, Nev. Mortgage Co. v. persons as Park was owned nine Industrial 1. Starlite subject ownership was to a deed of Their in common.1 tenants Loan Association of Nevada in favor trust ownership $693,000. Their also was in the sum a loan secure subject provisions between them sales prices designating specific and Loan certain blocks of the of certain lots within paid the release those lots were sold. Park as document, common, by appointed written The tenants attorney agent for each fact of them regard and the loan to the Industrial Park thereon from *3 No one else was and Loan Association. to act for them. authorized owners, consultant, working on behalf of the A real estate 73-page a real brokers Skurski and other estate docu- to sent containing description of the Starlite a detailed Industrial ment Thereafter, to Skurski showed the Janitell Park. purchasing prop- in commercial who were interested brothers Vegas erty area. the Las in the sellers and Negotiations some of Skurski and the early commenced in June and on brothers Janitell they August Staniek advised Skurski that had a Eric deal. noted, already court found the district that Eric Staniek As authority subagent with to act for was a owning in common the Industrial Park. We of the tenants
all finding. appointing perceive basis for such a The document no Greenberg, Greenberg, Greenberg, Ruth Phillip were Mayer owners 1 The Greenberg, Corwin, Harold Lois Louis Mattie Staniek Haytin, Haytin, Daniel Greenberg brought died this action was and his before Mayer Eric Staniek. a in his stead. named defendant estate Greenberg agent attorney Mayer in fact for each tenant in appointment subagent. common does not authorize the of a suggest Greenberg, Phillip is no evidence There that Ruth Greenberg, Greenberg, Haytin, Haytin, Daniel Harold Lois Corwin Mattie Staniek Louis or authorized Eric Staniek to act for them. subagent person appointed by agent empowered a A is an so, perform agent
do functions undertaken for the principal, agent agrees prin- but for whose conduct the with the primarily responsible. cipal (Second) to be Restatement Agency §5(l)(1957).We nothing suggesting read in the record Mayer principals empowered Greenberg appoint that the subagent, a may Mayer nor the record read be to indicate that Greenberg agreed principals responsible with his to be for the conduct of Eric Staniek. agency relationship normally grounded on the trust principal places agent. Consequently, confidence his relationship personal
the law has come to look
that
as
agency
ordinarily
It is for this
nature.
reason that
duties
cannot
delegated
express authority
without the
principal
any personal discretion,
judg-
where
duties involve
skill or
Torrington Company,
(2d
ment. Knudsen
1958). question placed upon Mayer
There is no
but that the duties
Greenberg
principals
regard
to act for the
to the Starlite
personal discretion,
judg-
involved
skill or
Greenberg.
personal performance
ment of
His
was called for
duty
perform
assignable
and his
to so
to Eric Staniek
anyone
principals.
or
else without the
consent
his
Sumner
Nevin,
(Cal.App. 1906) (holding
without the consent of the precondition A2. of entitlement to a broker’s commission produce buyer, ready, willing he and able *4 upon property prescribed by the the sellers. Bell v. Krupp, hap- This did not subject, pen. ownership The of the Industrial Park was not only Savings a deed of in trust favor of Nevada and Loan
Association, provisions a sales but also designating specific prices paid to be for that Association with the Industrial lots within certain blocks of of certain the release sold. lots were as those Park litigation deemed parties this as well as the Janitells The very important a if a element in sale one to be the release clause designated existing in the The release clause to occur. were agreement acceptable and Loan was not with having approval clause the A different release Janitells. the upon agreed was never and Loan of Nevada Therefore, and the or Skurski. it clear Janitells the sellers precondition the of entitlement to the did not meet broker a commission. and the cause is remanded below reversed The defendants-appellants. judgment for direction to enter J., J., Manoukian,
Mowbray, C. concur. J., Barter, dissenting part concurring part: in in majority’s holding Although I dissent from the that the finding the that Staniek district court’s does record sub-agent empowered for and bind all mem- awas group in its of the Starlite sale of the investment bers brothers, upon the I concur in result the to the Janitell by majority that Skurski did not recited reasons buyer, ready, willing purchase produce and able to Indus- prescribed the sellers. the terms trial Park J., Gunderson, dissenting: broker, Respondent, brought real estate licensed suit group, pay- against appellants, members of an investment allegedly during nego- real estate commission earned ment of a property. The the sale of real district court awarded tiations respondent interest, $66,875 plus appeal followed. October, 1972, Silverson, a Mr. real estate consultant respondent In working appellants, 73-page sent on behalf of containing description a detailed of commercial document property Respond- appellants Vegas, in Las Nevada. owned subsequently showed brothers Janitell ent investing property interested in in commercial were who Vegas area. Las Janitells, respondent, appellants, some of the and Sil- June, 1973, early Angeles, in Los California to met verson appellants’ property. meeting At that some the sale discuss proposed were worked out. details of *5 8, 1973, August appellant Mayer Greenberg, On to whom appellants power had attorney, the other respondent executed a called offer, original gave to revoke the but the Janitells days accept proposal. 11, 1973, August 10 to another On office, respondent Mayer Greenberg’s called appellant talked to Staniek, 8, accepted August and the 1973 offer. presented There was evidence employee at trial that an Nevada response and Loan drafted escrow instructions in Staniek, appellant ato call from in accordance with 11, agreement August the made on Subsequently, appel- 1973. accepted party lants an offer from another and the deal with the Janitells was never consummated.
Appellants (1) negotiations contend with one member of the group investment were insufficient to bind the remainder of the group; (2) there was insufficient evidence to sustain the trial finding respondent commission; and, that court’s earned (3) his pre-judgment improperly the interest award was calculated. Appellants argue 1. that since was attorney-in-fact he, group, for their investment and not Sta- niek, only authority was one who had on Therefore, group. they conclude, behalf of the since it was Staniek, appellant Mayer and Greenberg, to whom 11, respondent August 1973, communicated on we must find acting sub-agent Mayer that Staniek was as a Greenberg agreement order for there to be pur- sufficient evidence of an property. chase authority may Such be found from the facts adduced at trial. Co., 427, Nevada Nat’l Bank v. Gold Star Meat 89 Nev. Cf. Nelson, (1973); 410, Ellis v. 68 Nev. 233 P.2d (1951); Gabriel, 1072 Cleaveland v. 180 (Conn. A.2d 749 1962). frequently The evidence shows that Mayer Staniek took calls, Greenberg’s phone Mayer and acted Greenberg on group writing transacting behalf of letters business. any
There is no evidence that subsequently of his acts were repudiated Mayer Greenberg, any or other member of the Further, group. undisputed 11, investment it August that on 1973, respondent calling Mayer Greenberg’s office when representations the call took Staniek made on behalf of the Greenbergs. Mayer The evidence of record is sufficient find that Green- holding berg agent. out Staniek as his general that, The rule 2. is well settled in the absence of agreement, other some broker has earned his commission produced buyer ready, he willing, when has pur- and able to prescribed by chase terms the seller. Bell
742 247, (1970); P.2d 1013 Evans v. Dor- Krupp, Nev. 467 86 v. Smith, Lukey 319, 77 (1965); 652 man, 402 P.2d 81 Nev. Wilcox, (1961); Engel v. P.2d 487 Nev. necessary the sale to con- (1959). It is not P.2d 93 Wilcox, Engel id. summated. produced found that had court district The buyer. Appellants willing, contend there is ready, able because, this conclusion evidence insufficient willing Ralph that he was and able to although Janitell testified agreement property, there had been no as material buy the agreement. of the August phone that the con- district court found respondent (acting appellant Staniek and on versation Janitells) evidenced as to material behalf appellant finding fact substantiated terms. This prepare and Loan to escrow Staniek asked agreement. with that in accordance instructions *6 evidence, conflicting, support though can be read to “If fact], approve findings court must the trial court’s of [the Realty Inc., Hoppe Co. Ed 91 Shell Oil determinations.” 576, 578, (1975). 540 P.2d 108 See also Havas Nev. Carter, While there cer- P.2d 397 here, is, nevertheless, conflicting tainly there suf- evidence findings. district court’s ficient evidence $66, 875, together court awarded The district 3. simple percent per 7at annum. This sum was interest provided upon instructions which the draft escrow based buyers payments premiums of sellers. serial percent Respondent each these to receive of of serial payment plus percent the date payments, interest from each pro- judgment. The the date of escrow instructions was due to 1, 1973; $250,000 $125,000 payment on November vided 1, 1975; $125,000 1, 1976; November November on on $837,500 percent 1977. Calculation of 5 November on $12,500; $6,250; figures in commissions of results each these and, $41,875 percent per $6,250; respectively. of 7 Interest due, payment each to the date of date annum'from figures. these judgment have been based should portion judgment Accordingly, of the district court’s awarding pre-judgment should be reversed and the case interest opinion. with this for an award consistent remanded remaining portions court’s of the district be affirmed. should