Osler v. LandisOsler v. Landis
This is аn appeal by defendant-seller from an order of the district court granting plaintiff-broker $3,300.00 plus interest as commission for plaintiff’s efforts in procuring a ready, willing, and able buyer to purchase defendant’s condominium. We affirm.
The convoluted negotiations that gave rise to the prеsent action began with a letter dated January 16, 1978, from defendant-seller, acting as agent for his father, to plaintiff-broker. By that letter, the sellеr requested renewal of a nonexclusive listing agreement for Unit No. 19, Mount Snow Condominiums. The sale price was set at $35,000.00 furnished, $33,000.00 unfurnished, with an agreed sаles commission of 10 % of the sale price.
On or about January 23, 1978, plaintiff showed the property to one Mead Batchelder, Jr., at which timе the prospective purchaser noticed a leak in the roof. Mr. Batchelder made an oral offer to purchase the рroperty at $33,000.00 unfurnished, provided the roof was repaired. Plaintiff forwarded Batchelder’s offer to the defendant, who instructed plaintiff to obtain an estimate for the cost of repairing the roof. Following defendant’s instructions, plaintiff contacted the company that had installed the original roof. Based on its knowledge of the roof and plaintiff’s description of the leak, but without making an independent examination, the roofer estimated that it would cost between $800.00 and $1,000.00 to replace the entire roof, if that extensive a repair was necessary. As found by the trial court, this estimate was forwarded to the defendant by the plaintiff.
Defendant advised plaintiff that $1,000.00 was more than he was willing to spеnd, and refused to agree to the repairs. Nevertheless, defendant instructed plaintiff to obtain a deposit of earnest money from Bаtchelder. On February 3, 1978, Batchelder, on vacation in Florida, wired $500.00 to plaintiff as a deposit, together with a confirmation of the offer tо purchase the premises for $33,000.00, less the cost of the roof repairs. Upon receipt of the earnest money, plaintiff contacted defendant, who asked whether he would be entitled to retain any of the deposit if Batchelder did not go through with the deal. Plaintiff advised dеfendant that the prospective purchaser would forfeit his deposit. During the course of the conversations between plaintiff and defendant, a further agreement was reached, whereby the broker agreed to bear one-half the cost of the roof repair and the defendant agreed to pay for the other one-half up to $500.00. Defendant then instructed the plaintiff to contact a compеting real estate broker who also had a listing on the condominium, and inform him that defendant had taken a deposit on the premises, that a рurchase and sale agreement was being drawn by plaintiff, and that the other broker should take the condominium off the market. When plaintiff called the competing broker to so inform him, he was told that the other broker had a prospective buyer who also was interested in purchasing the condominium.
On or about February 12, 1978, plaintiff prepared a purchase and sale agreement, which was signed by Batchelder. The рroposed contract incorporated a provision containing the oral agreement between plaintiff and defendant regarding the roof repairs, as well as a provision making the deal contingent on obtaining “acceptable” financing. The propоsed agreement was then sent to defendant. The next day plaintiff telephoned the defendant to inform him that the contract was in the mail. It аpparently was during this telephone conversation that
defendant first indicated that he had received another offer on the prеmises — the latter offer not being conditional on roof repair or financing. Shortly after this conversation, plaintiff again called defendant and told him that he was willing to absorb the cost of the roof repair, which based on subsequent examination was now estimated at $350.00, and that Batch-elder had the financial means to go through with the deal at that time. Defendant replied that he thought some form of competitive bidding wаs now in order since there were two prospective buyers.
Under Vermont law, to bе entitled to a commission, a broker must show that he procured a purchaser ready, willing, and able to purchase at the price and upon the terms prescribed by the seller.
Dindo
v.
Denton,
The lower court found that plaintiff had provеd each of these essential elements. Our review of the record leaves us convinced that the court’s findings are well supported by сredible evidence, and do not even remotely approach being clearly erroneous. See V.R.C.P. 52. The record amply demоnstrates that the purchaser had access to a line of credit well above the amount necessary to purchase the cоndominium, and that extensive negotiations took place between plaintiff and defendant, the result of which was that defendant orally agrеed to the terms embodied in the February 12 purchase and sale agreement. Furthermore, the record demonstrates that plaintiff produсed, and the defendant wrongfully refused to deal with, the first purchaser ready, willing, and able to purchase. While the evidence as to each of these issues was in conflict, it is not for us to decide who or what to believe, but rather for the trier of fact to determine the credibility of the witnesses and the weight to be given to their testimony.
Cushing & Sons
v.
Labbe,
Judgment affirmed.