*1 311 PAYNE, RAD LEE Appellant, BILLIE Plaintiff v. Respondent. BUECHLER, Defendant No. 80-227.
Submitted on Briefs Dec. 1980. May Decided 1981. Dissenting Opinion May 1981. P.2d 646. *2 and appellant. for Billings, Neely, Gerald J. defendant for Anderson, Billings, & Murphy, Sinclair Berger, and respondent. the opinion delivered HASWELL
MR. CHIEF JUSTICE Court. to collect a commisison a real estate broker
This is an action to sell the the exclusive right a contract him granting under written owner can- the property the term of During listing, property. a herself. From judgment and sold the property celed recovery County denying District of Yellowstone Court commission, the broker appeals. estate a real licensed is Rad Lee Payne, and appellant
Plaintiff is Billie and respondent Defendant Montana. in Billings, broker Buechler, in Montana. Shepherd, the Red Rooster Bar the owner a agree- into and broker entered owner 1977 the On July bar, sell the owner’s was employed the broker whereby ment fixtures, residence license, a three-bedroom and furniture liquor at 8V2% $139,000 basis a installment 10-year four lots for things: among provided, written agreement The interest. IS AN EXCLUSIVE LISTING and you hereby “THIS LISTING absolute, to sell or ex- sole and exclusive are granted sale the event of me any the said described In change property. business, of said per- or of or transfer any exchange or other person, lease(s), thereof, sonal if or property, any, any the term part during or in case your I withdraw the employment, authority date, hereby given prior said expiration agree pay you said commission the same as a just if sale had been con- actually summated by you.”
The commission 10% of the agreement provided The date of the selling price. expiration The 1978. January agreement provided reasonable attorney fees in case of suit on the contract. to advertise the proceeded property Billings
Gazette, and mailed brochures including prepared property 3,000 which went to out-of-state approximately potential buyers, showed the to number of He sent further in- people. formation to those inquiries in- making responded telephone $1,120 He to sell the quiries. expended attempting property. 15, 1977, Thereafter on the owner September sent letter to the broker as follows:
“Dear Rad: bar, decided to
“Having the I wish to take it off the market keep and cancel my listing.
“If in the future want to list it I will first chance. give you
“Yours truly, “Billie Buechler “Red Rooster Bar 59079” Mont. “Shepherd, 27, Twelve later on the entered days September owner into an $120,000. to sell the bar to a third for party The broker filed his commission, complaint collect his 10% in- sale, terest from the date of fees and attorney costs. The owner answered the denying contract was exclusive and that the alleging broker’s was authority terminated to sale and prior that the pur- chaser was not procured efforts through any of the broker.
Pretrial consisted of discovery and interrogatories answers of the broker, owner, his who was the father and broker depositions him, owner. with and the associated business the District on 1980 before The case on for trial March came objec- a in evidence without without Admitted sitting jury. Court broker; the thereto of the and exhibits tion were deposition father; attorney an exhibit broker’s concerning his deposition fees; the listing; the owner to the broker canceling the letter from inter- and to the broker’s costs expenses; an exhibit relating owner; and a real and and the answers of broker rogatories and another on the between owner estate bar in evidence The broker also moved for admission broker. which owner therefrom certain parts excepting deposition inadmissible; the broker contended were in evidence of her entire deposition; owner admission sought ob- admissibility on the of those ruling parts the court reserved to and the rest. admitted jected broker,
At the trial and Mr. Van Lueschene owner testified in person, briefly. albeit fact,
The District entered conclusions of law Court findings of the court’s in favor owner. The substance judgment the ex- that the written the broker agreement granting clusive sell the bar was entered into the broker right 1977; on that the did not intend to July grant owner owner as the bar at least two broker sell with other real estate the same listings agencies 1977; from the effect on that no consideration flowed July that the other than their mutual broker owner contemplation his own to attract purchasers broker attempt prospective 15, 1977, benefit; September that the owner advised the broker on canceled; had nothing and that with to contract subsequent purchasers to do attracting *4 to owner or buy property.
From these the court concluded that written con- findings tract of 5 lacked July consideration and and the owner mutuality time; had the it at was right any to revoke that the agreement and sell owner’s that the agreement property; acted in faith owner the written contract and good terminating did on the broker. fraud for the owner perpetrate Judgment was entered accordingly.
We the issues on frame in this manner: appeal (1) Did the written contract between the broker and owner lack consideration mutuality?
(2) Was there sufficient evidence to support finding written contract not intended to and did not the broker give the exclusive to sell the right property?
(3) Did the owner have the to cancel the written contract right its term without for the during liability commission?
Lack
consideration was not
as a
raised
defense to the
written contract
but
owner
becomes an issue on appeal by
reason of the District Court’s
conclusions. It has been
held that a
regularly
broker’s
of time and
expenditure
money
find a
is sufficient
purchaser
consideration for the
promise
pay
commission and
such
upon
of time and
expenditure
money,
becomes bilateral
agreement
binding
owner. Kimmel
upon
(1900),
555,
1067;
v. Skelly
130 Cal.
62 P.
Garrett v. Richardson
(1962),
149 Colo.
The District Court further found that the agreement lacked mutuality. Mutuality was created obligation efforts of the broker to find a for the purchaser on the property owner’s terms and the broker’s of time and expenditure in this money effort. (1922), Harris v. McPherson 97 Conn. 115 A. 24 A.L.R. 1530.
We are next faced with the issue of whether the evidence is suffi- cient to the court’s support finding owner did not intend to give broker the exclusive to sell the and the writ- ten contract not an exclusive to sell. The contract states plainly on its face that the broker is granted the ex-
316 of the owner or sell the to the exclusion elusive to proeprty The District Court’s conclusions person. any of that based on the the owner contrary clearly testimony are that she she did not intend to the broker an give listing; still to other which were had listings agencies previously given evidence; effect, was and admitted in one of which produced written “nonexclusive” on her of con- that the broker had copy called Van Lueschene who testified that tract. She also Mr. on her Her “nonexclusive” written agreement. testified of the written never produced; had been vandalized and that she after home destroyed With molasses and had been on it. exception ketchup poured aof with another on existing prior estate all this evidence was to under objected parol real agency, rule was taken under advisement evidence court. terms of provides evidence parol generally oral cannot be altered or contradicted
written agreement
section
See
well-recognized exceptions.
certain
subject
28-2-905,
oral negotia
The written contract
all
supersedes
MCA.
which
or
its execution.
accompanied
tions or stipulations
preceded
28-2-904,
accord,
& Ward v.
MCA. In
Danielson
Danielson
Section
893;
(1977),
560
Land &
Batey
Mont.
P.2d
& Neu
172
1334;
(1977),
Nixon
172 Mont.
P.2d
Lar
Livestock Co. v.
(1972),
158 Mont.
Not so. This statute is
exception
simply
(1913),
401,
The owner M.R.Civ.P., 32(a)(4), this parol Rule render of Evidence and admissibility These evidence. admissible. are rules as a matter of cannot be introduced because Parol evidence the entire trans^ constitutes substantive law the between the parties. action evidence is under admissible
The owner also argues 1-4-102, section rule set forth in exception MCA: *6 instrument,
“For of an the cir- the construction proper made, which it was situation of cumstances under the the including it, also subject the instrument and of the to be shown parties may in the of those whose so judge placed position language is to he interpret.”
This statute to relates construction and interpretation written instruments but is irrelevant here. The language contract is and plain circumstances, unambiguous. Under such the language alone controls and there is nothing the to Court or interpret 28-3-401, construe. Section 28-3-303, MCA and section MCA. The quoted statute applies where exists in ambiguity the language contract.
We have examined the cases cited the owner which claims the support of parol evidence that admissibility she did not intend to the broker an give and did not him give such None the listing. of such support admissibility parol evidence in this (1934), case. Brown v. Homestake Co. Exploration 305, 98 Mont. 39 P.2d involved a lengthy contract ambiguous on its face and evidence was parol admitted as an aid to a clear to interpretations, the evidence exception parol rule. In Clark(1963), Platt v. 141 Mont. 378 P.2d parol admitted, contract, not to or alter the terms of vary a written but to show that a condition to an otherwise valid and precedent lease binding occurred and therefore the written lease never became effective. See generally Anno.: of Parol Applicability Broker,
Evidence Rule to Written
Real Estate
Agreement
Listing
Here contradicts unam- directly plain instrument; fall of the written it does not within biguous language evidence, its admission in and any recognized exception permitting on the District Court did clearly Although inadmissible. evidence, broker’s to its admission in its based conclusions reflect the court them this inad- clearly missible evidence. This was error.
The last issue whether owner had the concerns right the written its term listing agreement during thereby cancel the broker commission. The written agreement plainly gave deny broker an exclusive sell term right property during that if the or sold any person owner agreement; provided owner would or transferred the broker property, pay commission; that if the owner withdrew and finally provided owner would broker’s exclusive sell authority property, District held that the the broker commission. The Court pay at had the to revoke the time any owner any denied commission. indicated, once perform
As we have
the broker began
previously
time,
of his
the written
ance under
agreement by expenditure
terms, the
attract a
on the owner’s
purchaser
efforts
money
*7
It
binding
parties.
became bilateral
on both
agreement
written
terminated
the owner without
by
pay
could
be unilaterally
Co. v. Wilmer
ment of
broker’s commission. Piatt & Heath
1021;
(1930), 87
P.
& Co. v. Fishtail
Mont.
288
McDonald
195;
(1977),
Mont.
P.2d
Anno.: 88
Creek Ranch
572
938, 966.
A.L.R.2d
(1922),
is cited by
Flinders v. Hunter is agency relationship that an owner for proposition has an interest in the owner unless the broker by revocable is that the owner contention in this case not The broker’s property. The broker’s to the broker’s authority. lacks the terminate revoke, liable he is nonetheless if owner does contention is that for the broker’s commission the clear language does not the owner’s contention that agreement. Flinders support she is not liable for the commission.
In the District summary, findings Court’s conclusions the written lacked and that agreement consideration and mutuality was not an sell agreement to agreement property as a were error matter of law.
The Court judgment District the broker his com- denying is mission is reversed. The cause remanded to for the District Court entry judgment amount 10% the at which the was sold defendant price owner to Eugene Schaul, wife, F. Schaul Karen M. his under 27, 1977, dated reasonable fees and September plus attorney costs. DALY, MR. HARRISON SHEEHY concur. JUSTICES MR. SHEA dissents. JUSTICE
MR. SHEA dissenting: JUSTICE choice,
If amake I compelled would affirm the judgment. in error majority clearly rule to by invoking parol evidence the defendant from prevent that she had an proving with the that the real estate listing contract was nonex- error, clusive. But even though believe is in this case majority tried, was so and the and conclusions poorly are so inade- that I cannot quate good conscience vote to affirm the judgment. It would so. injustice requires be do that the judgment Justice vacated, and that the case be again. tried WHY THE MUST BE VACATED AND REASONS JUDGMENT AGAIN THE CASE TRIED
This case took more than an for both no hour try. Attorneys (that of sides that three Rad Lee stipulated depositions plaintiff, father, defendant, of his and that of the Payne, Payne, Carl Buechler) be admitted in evidence. The Billie exception reserved an of the de- plaintiff’s attorney part fendant’s on her claim that she had a deposition *8 written on the word “nonexclusive” with with
agreement attorney it Plaintiff’s claimed handwriting. in was evidence rule. this barred testimony that all pretrial agreed In addition the depositions, parties and their answers be admitted evidence. interrogatories answer, but I surmise that record does not disclose — it was hur- into the trial but were parties speeding up pressured so a trial at all. hardly much that was ried up total sixteen pages. covers testimony The trial transcript surrounding did not circumstances testify The plaintiff the amount testified to He listing agreement. execution he after to sell the defendant’s property of work put he trying did discloses hewhy in the record Nothing had obtained listing. the execution of surrounding on circumstances testify effect, case-in-chief on 1977. In July plaintiff’s listing agreement on was based legal entirely depositions. on the main question was called to Defendant longer. case was much Defendant’s her if she understood and her counsel asked the witness stand in lieu of been into evidence has introduced “your deposition she She then “yes.” . . .” and replied deal of great your testimony existence and still that was in listing identified another agreement on with she agreement in effect when signed into evidence was introduced agreement and this listing July she then testified that no from the She with plaintiff. with the plaintiff. refused to an exclusive sign she when present testified that Mr. Van Lueschene She Next, testified that with she plaintiff. signed own that plaintiff nothing she on her did sold covers direct examination find Her buyer. four pages. her if she then cross-examined her by asking
Plaintiff’s attorney that she had with the had found her of the listing as a plaintiff, explained destroyed how again result of covers one-and-a-half vandalism. This cross-examination of transcript. pages
Next, witness, defendant called Mr. Van as a and Lueschene he testified that he was when and defendant present plaintiff signed that he had seen the out the listing agreement, plaintiff filling and that he seen the word “nonexclusive” listing agreement written on the defendant’s of the Before listing agreement. Van Lueschene testified to the circumstances the ex- surrounding ecution of the a asked for listing agreement, plaintiff’s attorney on the that this continuing objection ground should be testimony (direct barred evidence rule. The entire by testimony cross) covers five of the trial pages transcript. rebuttal,
In plaintiff called the defendant as an adverse witness. She was asked if she with Van Lueschene’s agreed to the effect that the word “nonexclusive” was written on the front of her of the listing agreement, He then at- replied yes. tempted her impeach at her revealing she had deposition testified that the word “nonexclusive” was handwritten on the back side Both listing agreement. sides then rested.
Plaintiff then submitted and conclusions proposed findings defendant, court and the who did not have any prepared, given Later,- time to them submitted. get the court verbatim the adopted conclusions, proposed and entered findings judg- ment for the defendant. These and conclusions are ab- findings solutely inadequate, I could not a put stamp approval based on them. judgment
The and conclusions findings contain no reference to the claimed “nonexclusive” listing agreement. The are findings absolutely silent as to whether knew that defendant had one or more effect when the agreements signed fact, on July 1977. In there is no which finding covers the main — issue of this whether appeal parol evidence of the claimed “nonexclusive” should be admitted. issue,
The which only finding bears on this remotely no. finding 3 states:
“That the contract was not intended the defendant to be an to sell her that she had at right property; two with other real estate agencies
least other listing agreements also had to sell the effect on whereby they July property.” essence,
This is in the entire basis for the trial court’s finding decision, of consideration and the question question for the of this letter of termination are not case. dispositive be affirmed on the basis should only way judgment and conclusions is to invoke the doctrine implied it is used to and I am not about to do so. Too often findings, get trial courts off the hook who have not done their If job. simply in ex- case was well-tried and there was record good evidentiary istence, here, for further remand But findings. all, a new because there was trial at I would order trial. hardly *10 addI that neither the nor the trial court have out parties pointed 5, 1977, a as to was on when July who glaring discrepancy present the was In their the listing agreement signed. depositions, plaintiff, father, Rad Lee and his Carl testified that both of Payne, Payne, them were with the defendant the they when discussed listing was and when it Both of them also testified that signed. hand, was Mr. Van Lueschene on 5. On the other July present defendant, the defendant and Van Lueschene testified that the the and Van 5 when Lueschene were on the plaintiff, present July was Both of them testified signed. unequivocally truth, was that Carl not there. Someone is not Payne telling who is vital to the of whether wrote present question plaintiff “nonexclusive” defendant’s of listing agreement. reasons, and remand for these I would vacate judgment
For — of turn now to a discussion trial before a different judge. full the case and ordering judg- in why majority wrong reversing to for the ment be entered plaintiff. rules, to an of the I think it analysis
Before proceeding applicable on the facts stated in the necessary majority opinion, expand as to how it was also to this case in put procedural perspective tried. The will be considered first. procedural question indicated, As defend- previously depositions plaintiff, ant, and of in Carl were admitted evidence. Plaintiff did Payne, however, reserve an that she had a defendant’s claim objection, — “nonexclusive” aimed at listing apparently out of evidence her with the where keeping discussions plaintiff claims have insisted on a “nonexclusive” listing. however, is,
The fact plaintiff Carl depositions Payne, cover their version of had discussions with defendant they nonexclusive, as to whether the was to or listing be exclusive as to whether or had written anyone else “nonexclusive” on agreement. Their deposition also testimony covers their claim that believed that defendant they did have the listed with at the anyone else time she their signed agreement, even knew she though had they effect previously listing agreements in with real estate agencies. alone,
For reasons of fairness trial court should also have been allowed to consider the and of Van Lueschene on their version of the signing listing agreement. 32(a)(4), this, Rule See M.R.Civ.P. But aside from has majority missed the point applying evidence rule to bar parol evidence. The evidence falls within the clearly exceptions (set itself, 28-2-905, out in the statute section MCA), but unfortunately, the does not discuss opinion majority exceptions other than state “does not fall within any its recognized exception admission permitting however, evidence . . .” The to this exceptions, case. clearly apply ADDITIONAL FACTS NOT MENTIONED IN THE MAJORITY
OPINION
I next to an facts proceed expansion of the those stated in beyond majority because must done in order to reach the opinion, legal issues covered in the opinion. majority In her deposition, defendant what happened had explained her of the listing agreement: exhibit,
“And on or on my contract which was my destroyed statements, into, bank lost lost all my house was broken I when my bar, last bank statements from I lost all my all records from my my had, bar when broke into they my that I because everything year, mustard, molasses, house, they poured ketchup, or into my house, I mean all over everything, could find my anything they . . .” that could salvage anything there was no I way trial, this in- did not object At attorney plaintiff’s troduced defendant’s through deposition. however, the remainder the defendant’s object,
He did which states: answer in the deposition, then, he exclusively; would not list this told him I said I “I said, ‘Well, ‘we will this but’ he said: don’t do this way, we really he wrote ‘non- on the of my listing make an So exception.’ top this, Well, he wrote except have that nothing exclusive.’ prove to me this.” say there listening were people sitting was that of the plaintiff’s The basis of this testimony. barred admission counsel, trial, first Further, question in his at plaintiff’s cross-examination, the question opened up defendant if asked her He of the listing agreement. missing copy she said what and she again repeated her copy, she had ever found house broken into her that vandals had said her She deposition. mustard and, ketchup, had things, poured among including listing agreement, of her many papers, molasses over she threw how In had been ruined. explaining papers said: out items many out, there because throwing what I even realize
“I didn’t salvage. They poured stuff there I couldn’t was so much all over out my cupboards and everything molasses and ketchup papers.” my ad- trial testimony, her testimony,
By deposition Rule under laid a foundation defendant without objection, mitted M.R.Evid., 1004(1), destroyed lost or the contents proof — then, question, The next agreement. here the document *12 that testify whether were entitled defendant and Van Lueschene plaintiff listing the had of written on her copy “nonexclusive” agreement. I is admissible. no have doubt that such of the we are not
Contrary implications majority opinion, with the of copy the listing agreement. dealing plaintiff’s Rather, we are with the defendant’s dealing plaintiff’s copy the defendant claims that contradicts the con- copy, copy tents of the of effect defendant’s of- plaintiff’s copy. Although fered evidence is to alter terms of the clearly listing agreement show copy by plaintiff, held offered to existed, another of the same and that it copy listing con- tradicted the a Proof the contents of lost or plaintiff’s copy. 1004(1), document is under destroyed Rule M.R.Evid. permitted The evidence rule would not bar parol certainly evidence that defendant’s contained word “nonexclusive” in the copy plain- admitted, tiff’s Once this evidence was handwriting. would bar the evidence needed explain pa-
tent contradiction the listing Both versions cannot agreements. be right. of the logic means that the majority opinion outcome would have to
always be controlled contract held by copy broker. If wrote different terms on actually the seller’s of the copy agreement, he would never have to about worry what bound he had being the seller’s copy.
If this case were tried sufficiently out the facts and if bring suf- entered, ficient had been affirm the judgment for First, (one two reasons. the two copies listing agreement which the contents been first proved by foundation of laying document), a lost or destroyed only created ambiguity need of created a explanation, they patent contradiction which was vital. explanation Because the actual copy was not produced, question becomes one of credibility; Either trial court believes and his father that neither of them wrote “nonexclusive” on defendant’s the listing or the trial agreement, court believes the defendant Lueschene, that on defend-
Van did write “nonexclusive” ant’s of the listing agreement.
Second, written on “nonexclusive” was never de- assuming still could claim defendant listing agreement, fendant’s (section 28-2-905, or fraud invalidity, on the basis of illegality, MCA) defendant told was nonexclusive. If the plain- *13 and if she an exclusive agreement, tiff that she did not want effect, had in agreement that she a listing told plaintiff already to that he had an exclusive what would have claim right plaintiff and to a real estate commission under be entitled facts, would have known he here? these the facts Assuming defendant had no to receive an exclusive because had event, the to him one. In such exclusive listing no right give (an to evidence rule listed in section be invalid the exception parol 28-2-905(1)(b), MCA), to the recover by and any attempt the name of of could well be given on this basis an exclusive listing (another rule in section to the evidence listed fraud exception parol MCA). 28-2-905(2), follows. My explanation FOR EXCLUSION OF THE EVI- THE RATIONALE MAJORITY DENCE majority collects analysis, following
Without any and declares inadmissi- under one umbrella implicitly evidence of rule: ble evidence by parol application and “The District conclusions are based clearly Court’s did on the owner that she not intend testimony give that she had listing; previously given listings effect, which of which was pro- were still one agencies evidence; had written duced and and the broker admitted contract. also called Mr.-Van ‘nonexclusive’on She was written on her who testified ‘nonexclusive’ Lueschene of the written Her agreement. it after her destroyed that she never testified produced; had been ketchup home had been vandalized and molasses and existing listing on it. With the exception prior poured all this evidence was with another real estate agency, the property rule to under the evidence and the parol objected added.) taken under advisement the court.” by (Emphasis (sec- once does the refer to the evidence Only majority rule parol 28-2-905, MCA), tion never contained in the exceptions same state: statute. “The evidence rule They parol generally pro- vides that terms of a written cannot be altered or contradicted oral to certain subject well-recognized 28-2-905, added.) See section exceptions. MCA.” After (Emphasis evidence violates summarizing apparently parol discussed), evidence (previously and never the ex- out setting rule, ceptions parol states: opinion “Here parol evidence contradicts the directly plain unambiguous instrument; language it does not within any fall evidence, recognized exception its admission in permitting and is added.) . inadmissible . .” clearly (Emphasis I find such analysis rationale defective. seriously THE PAROL EVIDENCE RULE AND ITS APPLICATION HERE (excluded
ofAll the evidence by majority opinion) plainly statute, very admissible terms the entire *14 (cited section 28-2-905. Section 28-2-905 but neither nor quoted the states: applied by majority)
“(1) an Whenever the terms of have been reduced to agreement it is to be as writing by parties, the considered all those containing Therefore, terms. there can be between the and their parties or of successors in interest no of representatives the terms the other than the contents of the in agreement the writing except cases: following
“(a) when a or mistake of the is imperfection in put issue writing by the pleadings;
“(b) when the validity the is the in agreement dispute. fact “(2) This section does not exclude other the cir- cumstances under which the is or to made which it relates, 1-4-102, as defined in or other evidence to an ex- explain trinsic or to ambiguity establish or illegality fraud. as con-
“(3) . . . as well . . . includes deeds The term ‘agreement’ added.) tracts parties.” (Emphasis between “the is fact dispute” validity 28-2-905( )(b), listed section falls within the exception therefore is, had he an exclusive That broker contends plaintiff MCA. to a commission. But the defend- and was therefore entitled listing a “nonexclusive” only listing, ant broker had owner contends listing agree- on her and that he wrote “nonexclusive” correct, the listing agreement ment. the defendant Assuming as an would be invalid “ex- held broker plaintiff being here, mean that under facts clusive” Applied listing. here, a commission. could not collect plaintiff framed,
Further, the clear in- were so although pleadings that broker was was to show the plaintiff tent of the defendant fact, that in when all listing an exclusive agreement, holding illegal considered, of the lost or including destroyed copy are her the facts a listing ”nonexclusive” holding the broker listing agreement, so, would be admissible under This the evidence being agreement. (that is, 28-2-905(2). if the trial court If prevailed section defendant Lueschene), the witness Van and the believed plaintiff listing agreement, would be exclusive holding illegal this facts of case. based on the he could recover commission The essence of case she tried show held broker did not constitute the entire — that transaction listing agreement stating “nonexclusive", flatly contradicted plaintiff’s copy If written “nonexclusive” agreement. actually or to a agreed otherwise nonexclusive listing agreement, listing, have doubt no he would be of fraud guilty against defendant bv then collect commission based on his trying had an listing. he “exclusive” For listing agreement showing reason, this all of the would be under admissible 28-2-905(2). set out in exception section fraud *15 here, admitting all of the the evidence Under circumstances of fact as question mean that the trial court was faced with a would father, he could and his he plaintiff to who to believe. If believed if he believed de- paid. still that the commission be But order Lueschene, (as he rule did Van he could the witness fendant and and was here) listing held a “nonexclusive” of facts under the not entitled to collect a commission therefore case. I cannot affirm the District have forth the reasons why
I set I cannot forth the reasons why and I have also set Court judgment, factor, however, must more One opinion. abide the majority — the need question is the evidentiary posed by addressed agree- of the destroyed listing evidence of contents introduce ment.
PROOF OF CONTENTS OF THE DESTROYED COPY OF THE
DEFENDANT’S LISTING AGREEMENT An if decision that even the implied assumption majority defendant listing her with “nonex- produced copy clusive” written in the plaintiff’s that defendant handwriting, would still be bound exclusively by plaintiff’s copy has it agreement. Such decision behind neither nor logic justice. is: could the on defendant’s The first question if it still existed. have in evidence be introduced listing agreement could, much an bit as every it for her copy no doubt that Further, if her contained copy as was plaintiff’s copy. original it, handwriting, plaintiff’s the word “nonexclusive” real estate commission. to recover the plaintiff’s defeat to introduce permitted defendant be fairness Simple requires requires as fairness just the agreement, simple her of the listing agree- his to introduce be permitted who one of whether plaintiff, then becomes question ment. The have thrown her away claims to vandals, should be permitted
because it was virtually destroyed The law permits of this anyway. the contents document to establish do so. the contents prove applicable *16 1004(1), or it where has been lost or original copy Rule destroyed, M.R.Evid., provides:
“The is not and other original required, evidence of the contents (1) of a or writing, if: All recording, photograph admissible ... are lost or have been originals unless the lost destroyed, proponent added.) or destroyed them in . .” faith; bad . (Emphasis The defendant’s was an copy listing agreement original 1001(3), within rules of evidence. Rule meaning M.R.Evid., defines as follows: original
“(3) An or a original writing is the or recording writing itself, recording or any same intended to have counterpart effect aby person or it. . executing issuing
The evidence establishes that the listing were form agreements with a in listings, carbon between the and the second top copy. With the of the word “nonexclusive” exception written on being defendant’s copy by plaintiff (according plaintiff’s testimony) after received her copy, filled out all in one The motion. was also an copy original. 1004(1),
Under Rule supra, defendant could con- prove the tents of her her listing agreement by testimony Lueschene, Van who testified that sawhe write “nonex- clusive”, on the defendant’s The trial copy. only question court to determine under this rule was whether defendant threw away her in bad faith after she claimed it was made worthless faith, the vandals. If the did court ruled she it in bad it would rule that she could introduce her and that of through Lueschene, Van evidence of the of this contents listing agreement. if it But ruled that she faith she threw when good away evidence of the contents of her listing agreement, listing would be event, In this would any question of fact for the permitted. trial court to first determine.
If trial court ruled defendant was faith in bad throwing so away her she could listing agreement, testify, — Lueschene, Van its could witness contents wrote not, of trial court was The copy. the word “nonexclusive” course, or Van either the defendant Lueschene. believe required did, against be a admission devastating plaintiff’s But if he would interest, his that he an “ex- for it contradict claim flatly Nonetheless, of both of the contents once evidence listing. clusive” evidence, this a flat In were in contradiction arose. writings these situation, to hear the trial court would have undoubtedly from as both sides to the circumstances surrounding de- court would well trial agreements. execution the listing version of the facts it believed. on whose cide either way depending event, rule would not introduc- prevent In any *17 existing contradiction between tion of evidence explain be right. Both of them could not two listing agreements. stated, the reasons I would vacate the
For remand judgment for a new trial.