197 Conn. 264 | Conn. | 1985
The defendant Howard T. Brennan, having been found jointly liable with the defendant Sara Kramer to the plaintiff in the amount of $30,000 pursuant to a promissory note between the parties, has appealed to this court. On appeal he claims that the court erred in concluding that: (1) the promissory note, executed to secure a real estate commission, was enforceable without the written listing agreement being produced at trial; (2) the mere execution of a bond for deed without transfer of title entitled the plaintiff to a real estate commission; and (3) the plaintiff produced an able buyer thereby entitling the plaintiff to a real estate commission. The plaintiff has cross appealed from the trial court’s failure to award attorney’s fees.
The underlying facts, set forth in the trial court’s memorandum of decision, are essentially undisputed. The plaintiff, Francis T. Zappone Company, is a Connecticut corporation located in Waterbury. It performed services as a real estate broker. The defendant Brennan hired the plaintiff to act as broker for a sale of his property located in Waterbury. The plaintiff negotiated a sale of the building to the defendants Mark
The listing agreement was not offered in evidence or made available to the trial court until after the trial. The plaintiff testified that there was a listing agreement setting forth the terms of the transaction. Brennan acknowledged the existence of the listing agreement and that it called for the plaintiff to produce a ready, willing and able buyer. The court found that an enforceable agreement had been entered into between Brennan, Mark and Kramer, and found for the plaintiff on the note in the sum of $20,000 plus interest. Brennan thereupon moved to open the judgment and offered the listing agreement as a supporting exhibit. The trial court accepted the listing agreement as an exhibit and thereafter the court refused to open the judgment further so as to allow Brennan to reargue his position including the amount of the commission.
Brennan’s first claim on appeal is that the trial court erred in concluding that the promissory note, executed to secure a real estate commission, was enforceable without production of the written listing agreement at trial. “[A]n action to recover a commission arising out of a real estate transaction cannot be maintained unless there is a written contract or authorization expressing the underlying agreement.” Seaman v. King Arthur Court, Inc., 35 Conn. Sup. 220, 222-23, 404 A.2d 908
Brennan’s second claim is that the trial court erred in concluding that the execution of a bond for deed, without the actual passing of title, entitled the plaintiff to a real estate commission. “ ‘Under the doctrine of equitable conversion . . . the purchaser of land under an executory contract is regarded as the owner, subject to the vendor’s lien for the unpaid purchase price, and the vendor holds the legal title in trust for the purchaser. 55 Am. Jur. 782 [Vendor and Purchaser § 356]. The vendor’s interest thereafter in equity is in the unpaid purchase price, and is treated as personalty; Bowne v. Ide, 109 Conn. 307 [147 A. 4 (1929)]; while the purchaser’s interest is in the land and is treated as realty. 18 C.J.S. 49 [Conversion § 9].’ Cooper v. Polayes, 19 Conn. Sup. 353, 354-55, 113 A.2d 599 (1955).” Society for Savings v. Bragg, 38 Conn. Sup. 8, 13-14, 444 A.2d 919 (1981). “A broker has fully performed his task when he brings the parties to an enforceable agreement.” Walsh v. Turlick, 164 Conn. 75, 80, 316 A.2d 759 (1972). If, “without any fraud, con
In this instance, the plaintiff was retained by Brennan to seek out and find a purchaser for his property. It satisfactorily performed the contract by producing the prospective purchasers Mark and Kramer. A purchase price and real estate commission were fully agreed upon by all the defendants. At that time, a bond for deed was entered into by and between all the defendants setting forth the respective obligations of each party and establishing the plaintiff company’s real estate commission, upon which a down payment of $8000 was paid, leaving a balance of $20,000 due and payable.
Brennan claims that there was no transfer of the property entitling the plaintiff to its commission because the listing agreement states that a commission is due “upon the sale, exchange or transfer, or upon the exercise of any option to purchase ...” and none of the conditions of that specific agreement has been fulfilled. We disagree. A binding sales agreement such as a valid bond for deed passes equitable title, under the doctrine of equitable conversion, upon its execution. Cooper v. Polayes, supra. The parties are bound from that instant and the formal transfer of “paper” title can occur at some future date.
Brennan’s third claim is that the trial court erred in concluding that the plaintiff produced an able buyer, thereby entitling the plaintiff to a real estate commission. The plaintiff brought together all the defendants to discuss the terms and conditions of the proposed sale. All parties had equal access to information regarding
On October 23, 1978, Brennan filed a cross complaint asking for the return of the $8000 which he had previously paid to the plaintiff. In view of our conclusion that the plaintiff is entitled to receive the entire broker’s commission, the judgment of the trial court in favor of the plaintiff on the cross complaint is affirmed.
The plaintiff has cross appealed from the trial court’s failure to award attorney’s fees. There was an allegation in the complaint that “there is presently due and owing the sum of $20,000 together with interest, costs
There is no error on either appeal.
In this opinion the other judges concurred.
The plaintiff’s claim against the defendant Joan Mark was barred by virtue of the fact that Mark was discharged in bankruptcy on April 11, 1980.