Rogers v. Hendrix
438 P.2d 653
Idaho
1968
Check Treatment

*1 Realty, dba Emerald Harold ROGERS G. Plaintiff-Appellant, Hendrix, hus- HENDRIX and Eunice

Denver wife, Defendants-Respondents. band and

No. 10014.

Supreme Court of Idaho.

March

and the district judgment court entered judgment on that verdict. The is reversed and the action remanded for a new trial. May 10, 1966, appellant G. Harold Rogers, a (dba Boise real estate broker Realty), open Emerald entered into an listing agreement (real estate em- broker’s ployment contract) with Hendrix, concerning Denver and Eunice Emmett, forty-acre sale of their farm near Idaho. agreement employed appellant

The “to exchange sell or selling price hereon and on noted,” provided payment and it for price”) : “In the event that (6% “said selling * buyer ready willing to shall find a price enter and terms into deal for said may or such other as I * * accept The terms of sale listed agreement “Selling price, state: free [printed] : encumbrances [written] $40,000.00; [printed]: Terms [written] . (negotiate) down bal contract 29% posses- Fall consider a contract in trade. (Sept).” sion Appellant Rogers testified that before sought he listing, he knew Linda Meridian, Idaho, and Arthur Watkins of were purchasing like interested a farm Derr, Walters, Boise, Derr & appel- respondents. days listing A few after the lant. agreement executed, appellant Gorrono, Emmett, Louie brought the Watkinses see the n May executed .Watkinses McQUADE, Justice. money agreement, earnest in which the This is an action a real estate broker spaces blank had been filled appellant, for commission claimed due on a offering property according agreement or employment broker’s terms, money they to stated tract between the prospective broker and deposited appellant. May sellers of a farm. complaint alleges The document, signed this the broker buyer ready, will- “secure[d] thereby accepting the ing prop- said real agreeing pay appellant as broker also to under the [the terms and con- farm] $2,400.00. a commission of specified by ditions [sellers, the defendants agreement provided payment was to. a husband Employment in said wife] be: listing agreement].” [the action $5,500100 (plus deposited was tried before a which cash $500.- date; sellers, rendered verdict prospective 00) possession for the on or before $20,400.00 payments mtg.1 or to a covenants $13,600.00 “all cash more”; previously sold 80 (on land contract their or that amount assign' property) acre which $20,400.00 a land “in the form of part payment under *3 buyers acres) property (80 tract on the respondents; respond- * until payable [previously] sold farm, they, possession the ents tendered per mo Incl the rate of $250.00 6% the respondents, to interest on 1, beginning Feb. 1967.” by $15,000.00 loan to be borrowed acknowledged However, appellant himself signed new contract was Watkinses. This the signatures on the four or notarized by Watkinses, respondents refused. but now and, as will only Appellant respondents’ testified the discussed, caused presently this fact objection the the to terms of second when reject the document trial court to provision. tract had been the interest . Thus, appellant evidence. However, respondents the both testified the this document. never saw no-guarantee reason clause was another prop the listed A contract for sale of non-acceptance. for exami- On cross 16, 1966. up 15 or was drawn on June nation, respondent appellant’s attorney asked testimony con deal of There is guaranteed in the con- wife: “It wasn’t contract, the document cerning this you signed tract before [first Ap evidence. not itself was introduced tract], replied, “I don’t’ was it?” She the provided parently one its terms thejr remember, it the new one that was on during the pay interest Watkinses were to the first didn’t.” As mentioned above half, loan,2 1966, $15,000.00 aon last in evidence.' was not introduced to ($13,600.00) were proceeds the which warranty Respondents prepared a had though immediately respondents, paid to the deed enable dated their farm respondents tender would not June mortgage In obtain January 1967. Watkinses to the until event, signed the contract respondents They refused Federal Bank. the Linda Watkins the but Watkinses refused. they approve the' deliver because did testified: Nevertheless, second contract. June “A. It Federal didn’t have in it was what loan committee ap-

supposed be in it as far as were Land Bank of Boise Association by a proved $15,000.00 (secured' concerned. loan property) for mortgage respondents’ on “Q. words, you agree In other did not approval Watkinses. This was to the terms and conditions? ' Spokane. Land Bank of’ That Federal “A. I didn’t like that contract at all and approval given 1966. Wat- was June told so before. I think know can- request, application was kinses the loan that.” approval. celled after 17, 1966, contract, a new June ' prepared. only provisions respondents’ It testified contains two special pertinence: objection express second contract provision. guarantee the interest Watkinses would not undisputed testimony; disagreements According in tbe text tliis later attempt following. language meant Watkinses would get proceeds $13,600.00 a loan with making placing mortgage respondents’ the total Interest was at 5%% slightly purpose, more than For this however, Appellant, agreed prepare testified months. to and did six deed by applying property, face, the loan’s in favor of absolute on its existing gain debts, the deed was nev Watkinses. apparently the transaction. er delivered because of ready, purchaser sign willing and able respondents’ refusal

After presents contract, real appellant himself offered seller’s new ready, disputed buy pay part then all on terms first to Each Respondents with the broker or on interest. refused. listed the seller still accepts, time other terms which seller when testified special had lost pay the interest absence conditions offered to contract, skeptical of employment in him broker’s the broker trust and had become feeling that general is entitled to his commission.3 The district the whole deal. The principle hurry recognized trans- and the trying to court They judge jury.4 But note action also so instructed disillusioned *4 principle and buyers general that this were bothered because also brought personally suggest not the do whether seller sellers never day closing except the together appellant must still commission if before respond- buyer carry the first the unable out an when Watkinses visited becomes respond- regard, agreed deal.5 ents’ In this appellant each had offered ents testified contends, however, that the $2,000.- cut his error district court committed reversible quick a sale. rulings admissibility of in each of three on trial, the still time of certain evidence: forty-acre owned There was farm. agree- money Excluding 1. the earnest allegation the the trial no that at time of ment; Watkinses and were still respondent-husband Permitting 2. Indeed, sidering a Linda Watkins sale. ap- testify with that his conversations all testified she her had lost and husband pellant the led him to believe had in farm. purchasing respondents’ interest required before actual sale materiality, objection Linda Over due; a commission would the to close Watkins testified failure also Permitting Linda Watkins feelings the be- deal had caused no bad no bad that she her husband felt and the and tween respondents on feelings against account dispute the basic There is no about agreement. failure reach an present principle underlying the of law rejecting In the earnest if contracted action: a broker who has procure agreement, committed prospective the district court with a seller to a questions Lawrence, in this fact “One of the Homefinders ease, therefore, (1959); Frye ever broker Le- whether the is 335 P.2d 893 ready, willing buyer to- vanger, able found a purchase property (1955). terms listed the the acceptable the or on with broker “INSTRUCTION NO. to the owner. plaintiff’s are “You instructed the you not find “If the broker did determine require nego- contract him to does not pur- buyer ready, able to a pur- Binding a tiate chaser; you aforesaid, property then as chase merely requires it find a him to your verdict favor return should owner, buyer willing to into a enter case. in this defendant is the at the terms or such deal stated you did broker “If determine price as the defendant other buyer ready, willing able find a accept. However, (seller) may aforesaid, property then as continuing trans- find that this was your in favor verdict should return attempt was an action and that there broker, plaintiff in this is of the purchaser acceptable find ease.” those stated seller question contract, be com- discussion of such terms must 5.Por recent then Johnson, requires completed Dobbs, plied Inc. v. see Ellsworth with even it long A.2d 843 seller N.J. sale so as the acts faith. document, certifying acknowledgments necessary on which reversible error. signatures acknowledged or himself instrument.8 signatures, notarized the was offered However, present unnecessary in the possible evidence to show that “there was appellant’s action to decide whether certifi- ready} willing purchaser was [sic] necessary cate acknowledgment premises signatures to the earnest property.” tracted of the with the owners valid, thus, express we of course judge district denied admission opinion if, no on that Even issue. as by a prepared document “because ruled, appellant’s district court indirect notary pecuniary a definite has [sic] interest him matter barred in the outcome the lawsuit. acting notary and therefore ** A man judge cannot case.” his own document was void as between contended, “that while seller, it still admitted. should have been valid, the acknowledgment may not be attempt The document was offered not in an contents should be submitted to conveyance to force a jury.” the document was Nevertheless therein, only but rather evi- not admitted into evidence. May dence that about the middle of *5 respondents and the had reached Watkinses A convey an to a meeting concerning substantial of minds community signed real be must of sale. As such the document was signature the wife and her must be probative that time acknowledged.6 Respondents’ prop listed considered community, so one purchase them, acceptable re- parties provision to the sale the earnest spondents. money agreement sought enforce it as a The record the earnest indicates sale, validity contract of acknowl of its was a central link edgment would be essential. But here we admitted, appellant’s chain of evidence. If directly note that although party conclusively the document have would not subject terested in the matter an instru appellant’s case, it established but convey certify ment validily cannot probative might of material issue acknowledgment signatures ins on the swayed have a verdict to return trument,7 appears open ques to be an appellant. judgment therefore tion whether a real who estate broker must be the action remanded reversed and upon a stands to receive a commission for a new trial. conveyance can matter remanded, be Because action must certify validly acknowledgment of such is well to consider certain issues conveyance. instrument of This Court assignments of have been raised has never considered nor the issue can we presented again error and that be find jurisdiction case from another the conduct of the new trial. has determined the issue. But it is notable analogous situations some courts trial court Appellant claims the have held agent that an parol whose commission and there violated the evidence rule depends on by permitting respond execution of a document is not committed error by that fact validly barred read alone ent-husband to that he never Brenner, (1939); § I.C. 32-912. West v. Branch Inv. Co. 88 20 N.E.2d 939 (1964). Wooten, 396 P.2d 115 167 v. 198 N.C. 152 S.E. (1930); Davis, Harvard v. 145 Ga. Lythman, 7. Knudsen v. (1916); Belcher W. C. S.E. 740 (1920) (mortgagee acknowledges P. 130 signatures Mortgage Taylor, 212 S.W. Co. mortgagors). C.J.g. (Tex.Com.App.1919); see also Fidelity Acknowledgments 54(a) Am. United States & Guar. Co. § English Co., Jur.2d, Acknowledgments Const. § Mass. your take had not would fee out of him, proceeds told him that sale? read it agreement provided that a commission “A That is-correct. pertinent depended Certain on actual sale. So, “Q therefore, you expected testimony by appellant himself should paid of a sale. Isn’t out of he presented Appellant first here. said that true? initiative, his own visited “A That true.” is No error in admission of evidence prospec- “essentially I them I had a told ground judgment disturbing “unless buyer who wanted to tive appears refusal such action take him, buyer think I told substantial I jus- court inconsistent substantial farm similar wanted party If the objecting tice.”9 has himself they theirs, wanted I them if and asked n presented earlier the action evidence place they indicated to sell their erroneously effect the same as evidence they would sell it. objection, error admitted over his such will say? “Q they What did just Appellant’s be deemed harmless.10 it and They they “A sell said would quoted testimony sufficiently establishes * * *. I asked them we discussed point respondent-husband ad- to which listing on the give me a brokerage regarding dressed himself place I had a because felt payment agreement that error in the admis- subsequently out form filled respondent-husband’s sion of listing agreement.” real estate would be harmless. expected his com- he also said Further, parol rule evidence *6 proceeds, paid from sale mission would be testimony require does not exclusion of Ap- procedure. was normal and this brokerage agreement it where written the fol- pellant’s testimony contains also unambiguous complete self as and lowing : statement of all transaction’s details.11 recall, having “Q you Rogers, Mr. Do print present fine Hendrix and Mrs. discussion Mr. requires concern commission you asked their home when Mr. Hendrix “a to enter found Do you get your commission. how would terms, price or into a deal for said conversa- you anything about that recall may price ac such as I other tion? cept.” But “said and terms” are that, he I discuss would “A think we did $40,000.00, bal con stated as down “29% money have the out of in a contract (negotiate) tract consider this. least, may be trade.” At the these terms acquiescence ne demanding explained him “Q Exactly, read money gotiated by respondents and so their pay you the that Watkins would par- acceptance recognition of some closing make a DeModena, (1966); Boesiger v. 88 61. Idaho R.Civ.P. Wohlschlegel (1965); 337, P.2d 635 399 Village v. Priest Riv- See Nacearato Holst, 470, 1051 P.2d 81 Idaho 346 v. (1948); er, 368, 68 Idaho 195 370 Bradshaw, (1959); v. 64 Idaho Stone Johnston, 601, v. 113 P. State 62 Idaho Molyneux 152, (1942); 128 P.2d 844 Black, (1941); 2d v. 36 Idaho 809 State 619, Co., 54 Idaho v. Twin Falls Canal 27, 208 P. 851 1264, (1934); 651, 94 A.L.R. 35 P.2d Arkoosh, 37 Garvin, v. Wood River Power Co. v. 76 N.M. Maine (1923); Annett, Roy (1966); P. Johan v. P.2d 40 Inc. Looney, Killin, P. 303 v. 30 Idaho sen Mich. 112 N.W.2d Comm, Shiya Ranch, (1917); Big National Inc. see also Butte cf. 1967). (2d Gibran, Grasmick, F.2d 602 Cir. 415 P.2d 91 Idaho appel- if, buyer presented ticular to them contrary, they terests or are lant, primarily be due. before the commission would tended to force a sale at Though appellant’s cost. say we cannot Thus, respondent-husband was insofar as conduct disclosed record amount permitted de- commission faith, ed to bad nevertheless ob pended completed, proceeds-producing on a viously renegotia attempted initiated some sale, it in direct was error because conflict least, agreements. tion of if the agreement; with the written indicates, evidence at trial re new so present circumstances error was harm- spondents by appel should benefited However, testimony less. to the effect apparent renegotiations lant’s com fluidity stated sale terms of obligation agreement, mission i. e. of his necessarily respondents had indicated that fer to deduct $400.00 $500.00 accept recognize perhaps certain cut even to particular buyer before commission quick his sale. properly due would be admissible evidence Of develop appel should course tending explain incompleteness since lant in bad faith contrary acted to the best ambiguity agreement. in the respondents, appellant interests of should Next, challenged concerning the receive no commission.13 testimony Watkins, bad of Linda that no reversed; Judgment remanded for action feeling existed between re Watkinses and new trial. spondents through, because the fell sale appellant. Costs to by admitting court did not err tes timony appellant’s objection over its

materiality. probative TAYLOR, SPEAR, McFADDEN, and issue, important of an whether JJ., concur. negotiated in a reasonable manner with party Watkinses. As a to the sale YOUNG, (concurring District Judge transaction, Linda Watkins specially). position respondents’ to observe behavior concur result reached and regard. in this holding deny ad- was error to appears

It receipt. also on this worthwhile mission of *7 record opinion to remind that a real am broker still of the estate fiduciary is a principal.12 of his respondent Because contra- position trust, argument unambiguous language dicts the clear and broker principal listing agreement, his re- rewrite insofar that it sale in upon order close a deal must lates to the conditions which a com- closely due, scrutinized to determine mission would is a viola- thus the principal’s alterations are parol best tion of evidence rule. Quillin, Quillin, supra See McShane v. n. 12. 47 Idaho Cf. McShane v. Dobbs, 277 P. 554 cf. Ellsworth supra Johnson, 5; Valley Inc. v. n. Office, O’Grady, Wash., Inc. v. P. 2d 850