*1 OF TWIN SOUTHERN IDAHO REALTY 21, Plaintiff,
FALLS, INC.-CENTURY Appellant, v.
Counterdefendant and LARRY J. HELLHAKE AND ASSOCI Stoker, Gooding, plaintiff, Jeff for coun- ATES, INC., Peters, De William H. appellant. terdefendant and Respon fendants, Counterclaimants
dents. Crookston, Meridian, Wayne Curtis G. Falls, defendants, Eaton, Twin for counter- No. 13401. respondents. claimants and
Supreme Court of Idaho. DONALDSON, Justice. Aug. 1981. dispute right underlying concerns
Rehearing Denied 1981. Nov. to receive a real estate sales commission property from the of certain sale real Farms, owned West Side Realty Plaintiff-appеllant is Southern Idaho Falls, (Century of Twin Inc.— 21). Defendants-respondents Larry are J. Associates, (Hellhake) Hellhake and Inc. William J. Peters. Peters worked setting up prop- Hellhake in the sale of the erty; “listing parlance, trade Peters is “selling broker” and is a broker.” Hellhake composed West Side Farms of seven ners, one of whom Donald B. Robertson. Don Robertson also acted as a real estate for at certain times in the present action. 23,1978, partners
On October three of the Farms, including of West the afore- Side Robertson, a list- signed mentioned Donald ing agreement, entitled Autho- “Exclusive Sell,” Right rization and property. This partnership for the sale of expiration listed an date of Jan- 23, 1979, uary provided 6% com- for a upon paid mission to be sale property within the term. Don Rob- ertson, after as a partner, agreement as then subsequent At some time October Hellhake respondent offering became aware of the sale of property thе West Farms Side locating buyer, potential Centu- contacted ry regards splitting commis- the sales sion. An was not as to reached *2 614 splitting. Subsequently,
this fee
agent
Thomas
“Partner
of partnership as to
Rudy,
partner
another
of West Side Farms
partnership business.—1. Every partner
signator
one not a
to the Century 21
is an
partnership
of the
for the
listing agreement, gave respondent Peters a
purpose
business,
of its
and the act of
listing
verbal
partnership
to sell the
proper-
every partner, including the execution in
Thereafter,
ty.
Peters and Hellhake collab-
the partnership
any instrument,
name of
putting
orated in
together.
a sale
apparently
carrying on in the usual
18,1978,
On
partners
November
all
way
of the
the business of
partnership
of
Farms,
of West Side
Don Robertson includ-
which he is a
partner-
member binds the
ed, signed
money agreement
an earnest
ship,
partner
unless the
acting
so
has in
the sale of the partnership property. This
authority
fact no
partner-
to act for the
agreement provided
Hellhake,
as bro-
ship
particular matter,
and the
ker, would receive the sales commission.
person with whom he
dealing
is
27,
following
1978,
On the
December
knowledge of the
fact
he has no such
“Agreement of Sale” was entered into.
authority.
Again,
partners signed
all the
provision
2. An
partner
act of a
which is not
was
payment
made for
of the commissionto
apparently for the carrying on of the
Accordingly,
Hellhake.
the commissionwas
partnership
business of the
in the usual
paid to
by respondents.
and retained
way does not
partnership
bind the
unless
suit
Century
alleging
filed
authorized
partners.”
the other
rights
listing agreement.
its
under the
case,
In the instant
Century 21’s amended
response
In
respondents’
motion and fol-
complaint alleges as a cause of action con-
lowing
hearing
and submission of docu-
interference,
tract
specifically that conduct
ments, the district
court dismissed
part
on the
respondents
“caused a breaсh
complaint
for failure to state a cause of
of said
place
to take
action
which relief
granted.
could be
part
of the
partner-
Westside Farms
basically
court
concluded that
ship.”
therefore,
question,
The initial
is
estopped
deny
status of
whether, pursuant
53-309,
to I.C.
§
21,
Don
Robertson and that
binding
existed a valid and
contract. With-
through
subsequent
signings of
out such
there can be no interfer-
money agreement
earnest
and the sales
ence and the cause
agreеment,
of action must
vitiated
fail.
any rights
and released
21 to the
guided
We are
in
this matter
sales
appeals.
commission.
On
Garrett,
Hodge
recent case of
v.
101 Idaho
grounds,
other
we affirm.
397,
(1980),
I.C. reasoning Hodge § section of Idaho’s uniform law, partnership provides part: instructive.
Here, Hodge, issue, underlying dispositive summary judgment signed by less than proper. Corp., Stewart v. Hood 95 Idaho fact, Century partners. in its amend (1973); Tofoya Fleming, P.2d 95 complaint part ed admits that three (1971). 94 Idaho In the face *3 signed listing (actually ners the out of four of this uncontradicted the affidavit and de- Furthermore, seven). there were ficiency pleadings dispute in the there is no allege 21 does not even the three had in the facts. authority sign to partnership. for the Simply put, alleges as its Hellhake, defendant in an affidavit which sole cause action interference with a was before the court at the time of the fails, however, contract. dismiss, listing motion to states that the show that a contract ever To the existed. by not signed nor by the wives contrary, the record discloses that the list partners one of Rudy. the Tom Further ing agreement was void ab initio. There more, he affirmatively states that Tom “meeting was never a of the minds” be Rudy listing. had not consented to such partner tween 21 and the whole (which The defendants’ motion to dismiss ship of Westside Farms either before the by was treated the court as a motion for signing of the or after. summary judgment)1 upon was “based Thus, Century 21 has failed to establish the file,” pleadings on one of which was the prima requirement facie existence of counterclaim, defendants’ answer contract, as be must done with the tort of which specifically stated: “Defendant de contract, interference with Barlow Inter nies signed that Westside Farms Company, 881, national Harvester 95 Idaho (signing) and that those three (1974),2 522 P.2d and Centu partners authority had sign the list ” ry 21’s cause of action must ing . therefore fail.3 spite . . . In of the fact that the issue The order of the dismissing district court signing partners’ of the authority was clear complaint presented ly failure to state a the court motion cause of dismiss which relief can (summary judgment), is the record action granted is devoid therefore affirmed. evidence Costs re submitted Centu ry spondents. attorney No appeal. 21 that fees on partners had such authority. Because of the failure Centu
ry 21
affidavit,
to controvert Hellhake’s
see
McFADDEN, BISTLINE and SHEP-
56(e),
I.R.C.P.
plead
or to even
ARD, JJ., concur.
partners
sign
on behаlf of the
BAKES,
Justice,
Chief
dissenting:
partnership,
dispute
in the rec
signing authority.
First,
ord as to the lack of
majority
I dissent.
decides this
apparent
it is
Where
from a review of the
case on an
issue
considered below.
dispute
Second,
record that
there is no
as to a
support
the record does not
treating
causing
the motion as a
motion
sum-
intentional
interference
breach of the
mary judgment,
specifically
(d)
injury
plaintiff
court
resulting
noted
pleadings,
that it
(citations omitted).
had “cоnsidered the
affida-
from the breach.” Id.
vits,
counsel,
memoranda of
and other docu-
ments filed herein....”
3.We
are not unmindful of this
While Hellhake’s affi-
Court’s state-
Barlow,
prior
supra,
contract,
davit was submitted
dismiss,
to the motion to
ment in
that with the tort of
clearly
“[protection
it
considered
the court
is ex-
granting summary judgment,
against unjustifiable
tended
interference with
were informed well in
though
advance that it would be
contract even
the contract is voidable
so considered.
adversary prоceeding.”
or unenforceable in
Id
(citatations omitted). However,
as was not-
provides:
2. Barlow
Barlow, id.,
ed in
n.
rule
is otherwise
prima
“A
facie case of the tort
interfer-
[of
regard
ab
contracts void
initio. See W.
ence with
contract]
established where the
Prosser,
L.
Handbook of the Law of Torts
plaintiff
proof
(a)
adduces
of these elements:
(4th
p.
1971).
Annot.,
§
ed.
See also
contract, (b) knowledge
the existence of a
(1979).
96 A.L.R.3d
defendant,
part
(c)
Third,
grounds
order, Judge
majоrity relies on.
were set
In his
facts which the
forth.
majority ignores
the law set out in our
granted
plaintiff
days to
Ward
fifteen
previous cases.
complaint.
file an amended
14, 1979, Century
February
or about
On
I
complaint.
In this
filed an amended
disposes
of this case
majority
complaint,
original
second
it abandoned its
partners
holding
three
who
that the
proceed upon
chose to
theories and instead
listing agreement between the
the initial
theory
with con-
of tortious interference
Realty did
partnership and
Southern
tract,
although
complaint
nowhere
authority to
not have
bind
specifically
Again,
denominated
such.
proceedings
review
below will dis-
A
responded
both defendants
with motions
*4
presented
was
to or
close that
issue
not
Again,
dismiss for failure to state
claim.1
trial
considered
the
court.
specific
motion sets
forth the
neither
Century 21 filed its
January
On
respond-
grounds
Century 21
for dismissal.
original
Declaratory Judg-
for
“Complaint
affidavit,
filing
ed
Don Robertson’s
de-
ment,
Possessiоn,
Damages.”
of
and
Writ
Opposition
as an
in
nominated
“Affidavit
Basically,
complaint
that the com-
the
asked
The
dealt
Motion to Dismiss.”
affidavit
Century 21 and the
split
mission be
between
only
problem estoppel
of
raised
with the
loosely
was
complaint
defendants.
agency
dual
Robertson’s
status.
alleged
on
an
be-
based
either
Judge
the
or
and trade in
argued
tween
custom
before
Grana-
The case
Also,
industry.
January
on
the real
21,1979,
estate
May
taken
advise-
ta on
under
plaintiff Century 21 succeeded in
the
30, 1979,
May
Judge
On
Granata
ment.
obtaining
cause
from the trial
a show
order
“Opinion
an
in re Motions to Dismiss
issued
judge, directing defendants Hellhake
and Counterclaimant.”
Defendants
why
a writ
appear
Peters
to show cause
only
the
the
opinion,
judge
that
addressed
possession (for one-half of the commis-
of
estoppel
Don
dual
issue of
sion)
not enter. Both Hellhake and
should
agency
Again,
status.
the court did
to dismiss
responded
Peters
motions
authority
problem laсk of
on
mention the
of
specific
No
for failure to state
claim.
partners signing the
part
the
of the three
grounds were set forth in the defendants’
opin-
listing agreement. Nor
did
initial
answer,
an
motions. Hellhake also filed
judg-
summary
anything
ion
about
mention
counterclaim,
quash
motion to
the order
merely granted the defendants’
ment.
It
cause,
Support
in
show
and an “Affidavit
directed
to dismiss and further
motion
Quash
It
Motion
Order to Show Cause.”
appropri-
prepare
for Peters to
“an
counsel
upon
majority so
is this
which the
affidavit
ate order.”
heavily
to the matters
relies.
In addition
“appropriate order” turned out
That
majority opinion, Hell-
alluded to in the
summary
signed by the
judgment
be a
customary
states
it is
hake’s affidavit
that
5,1979.
Insofar
the record
June
court on
only
split
commission fees
where
reflects,
court
is the
time that
first
multiple listing
there
judg-
entering
summary
it was
indicated
and, further,
there was no
service
that
ment, having
outside
considered matters
sharing
the fee
between
pleadings.2
Cеntury 21 and Hellhake.
judg-
summary
appealed
that
13,1979, Judge
grant-
February
On
Ward
is-
ment, arguing that
there exist material
ed the
motions to dismiss for
defendants’
application
respect
to the
Again,
specific
no
sues of fact
failure
state a claim.
(not
Robertson affidavit
com-
21’s submission of the
1. Neither defendant answered
second
required
affidavit)
plaint,
that
Hellhake’s
which
however.
a motion
to dismiss be treated as
motion
argument
appeal,
summary judgment.
At oral
Hellhake’s and
attorneys аrgued
it was
Peters’
theory
only
trial court’s
estoppel
evidence
majority
to which the
agency
point
support
Don Robertson’s dual
status. Al-
can
in
conclusion is
its
though the
found in
pleadings
defendants’
Hellhake’s affidavit.3 That affida-
filed in
provides
response
absolutely
support
vit
no
complaint
for re-
original
solving
factual
issues about
question
indicate that
partners’ authority. Hellhake
raised,
states
nothing
signed by
was not
record which indicates
issue was
partners,
which is
obvious
of аbso-
presented to the trial court as a basis for
lutely
legal significance
prior
view
defendants’ motion to dismiss. To the con-
law
case
which establishes that less than all
trary,
issue which received
partners may
appropriate
cases bind
conjunction
attention in
with the motion to
Garrett,
partnership. Hodge
supra;
question
dismiss was the
of Don Robertson’s
Bros.,
Geisler, supra.
Marshall
Inc. v.
Hell-
Nothing
dual
status.
in the record
(on
hake next asserts
be-
“information and
indicates that
21 knew оr should
my knowledge”)
liefs” and “to
that Tom
known that it would be called
Rudy had not consented
to the
allegations
rebut
those
pleadings
found in
agreement. Hesitant
to state the obvious
response
filed in
to Century 21’s initial com-
while mindful
majority
fact that the
plaint,
Today,
then
dismissed.
*5
it,
apparently
point
I
overlooked
must
will
changed
find that it
a motion to dismiss
out that Hellhake’s bare assertion does not
into summary judgment
by filing an affi-
establish that
it was
upon “personal
based
single issue,
davit on a
only to have this
knowledge,”
required by
as
56(e).
I.R.C.P.
grant
Court
summary judgment
years
two
While Hellhake could have observed that
later on an
ground
alternative
factual
Rudy
Tom
had not
the
which it submitted no affidavit.
his affidavit
way
in no
discloses any basis
for his knowing
Rudy
given
whether
had
II
his consent to authority,
implied,
be it
ex-
press
apparent.
56(e)
or
requires
assuming
argument’s
Even
I.R.C.P.
sake that
“[sjupporting
opposing
this issue is
affidavits
properly
Court,
before this
personal
be
shall made on
knowledge,
shall
are
questions
nonetheless matеrial
set forth such facts as would be admissible
regarding
fact
the
evidence,
and shall show affirmatively
preclude
which would
issuance of summary
is competent
affiant
testify
judgment.
Hodge
As
cases of
v. Gar-
the matters
(Emphasis
stated therein.”
rett,
397,
101
(1980)
Idaho
The extent
and naturе
author-
ity
pose questions
do not
of law to
Apart
be decid-
majority
from the fact that the
is
Court,
especially
meager
ed
this
on this
reaching
factual
issues which
shouldn’t
record.
resolving
support
them without
tory
The
lack of evidence on this issue should not
of this case as set out
in Part I
this
surprise anyone considering
procedural
his-
dissent.
record,
subject of an
claim un-
majority
on the
be the
interference
is also incorrect
law.
In Barlow v. International Harvester
case.
der the Barlow
Co.,
881, 893,
1102, 1114
95 Idaho
522 P.2d
appropri-
is
term voidable contract
“[T]he
(1974),
is ex
this Court stated: “Protection
ate if ratification
one of
unjustifiable
against
tended
power
terminate
of avoidance
would
his
though
even
with contracts
the contract
enforceable
and make
adversary
voidable or
in an
unenforceable
Moreover,
may
. . .
against him.
action
noted,
proceeding.”
opinion
“The rule
con-
necessary
prevent
in order to
regard
is otherwise with
to contracts void
ordinary legal
producing
from
tract
1114,
at
n. 2.
ab initio.” Id.
522 P.2d at
contract;
consequences of a
often such
case, then,
simply
wheth
The issue in
action in order to be effectual must be
was void ab initio
er
(Second)
promptly.”
taken
Restatement
merely
usually
avoidable. A contract
(Tent.
e
Draft
of Contracts
comment
subject
initio if its
matter is in some
void ab
1973)
added).
(emphasis
opposed
public policy
so that the
manner
reasons,
respectfully dissent.
For these
I
upholding Whitney
not aid in
it.
law will
my opinion,
questions regarding
factual
Co.,
Life &
89 Idaho
Continental
Accident
the existence of
rela-
(1965) (group
P.2d
life insurance
tionship
preclude entry
stat
policy
contrary
held void
to Idaho
basis,
summary judgment
on that
Davis,
utes); Worlton v.
73 Idaho
I
ground relied on
the court below.
(contract
(1952)
involving layman’s
P.2d 810
court,
permit
reverse the
but
would
trial
void).
attempt
practice
held
medicine
again
Peters
defendants
and Hellhake
never
types
These
of contracts are deemed
summary judgment on other
move for
the law.
eyes
have existed in the
in the trial court’s
grounds not discussed
contracts
same cannot be said of
opinion.
written
by agents acting in excess of
into
entered
*6
established,
authority.
It
for
their
is well
BISTLINE,
Justice,
entry
on
be af-
example,
that
can
such contracts
denying rehearing,
issued the
Court’s Order
Clark
by
principal,
and ratified
firmed
opinion:
following
Gneiting, 95
501 P.2d
nothing
Continuing
agree
in
that
curing
(1972),
retroactively
any defect
thus
betweеn
record establishes that a contract
Indeed,
an un-
authority.
ratification of
in
Farms,
Century 21 and Westside
inferred from
transaction can be
authorized
existed,
it
towell
nership, ever
I conclude
repudiate
Restatement
it.
a failure
there
were
that
that even
it assumed
Agency
(1958).4
exam-
add
(Second) of
For
§
readily
not
valid
it is
Rudy
Tom
not consent
existed a
ple, if indeed
did
with.
listing agree-
any way
in
interfered
original
how it was
signing
seen
itself,
repu-
most
why
didn’t he
as do
ment with
The
notify Century
certainly
listing agreements,
con-
diate that
or
exclusive
authority?
lack of
may
of the other
be a sale of
templates that
Instead,
the same
appears
it
he did
that
by party other than
property
a
on the
thing give an oral
to Peters
agreement provides:
3 of
Section
—
behalf,
apparently the
partnership’s
which
hereby
Agent.
I
“Compensation to
concluding the
by
partnership later ratified
(a)
compensate agent as follows:
agree to
sale.
price
proрerty
selling
if the
6%
Agent
by
...
during the term
sold
hereof
Thus,
applying
law which
even
by
through any
person,
other
at
... or
agreement was
majority applies,
this
”
added.)
voidable,
(Emphasis
properly
....
thus would
me
most
acting
agent
by
ably
principle
was not
as an
ertson
set forth
4. The same
money agreement
17),
(page
respondent’s
the earnest
21 in
his
brief
Peters in
Here,
obliged
is on the other
argues
the issue
sales contract.
wherein he
agency
repudiate
if indeed Rob-
foot.
then,
clearly
property
its terms
owners for reasons undisclosed
.[1]
contemplates
testimony
a
a
party.
preferred
sale
third
It has
If he
not
always
my
generally
been
to sue
understood—in
them and
allowed limitations
run,
sign
circles at least—that
who
such
no fault of Mrs. Horn.
agreements
pay
bind
to'
themselves
com-
in
“The mere fact
this case the
agent
(exclusive) listing
mission to
may
deliberately obligated
owners
regardless
property,
sale of the
brokers,
to two
may
themselves
actually
buyer.
type of
who
finds the
This
them,
pay
disinclined to
one of
is immate-
agreement, assuming
validity, does
its
not
pay
They
rial.
could have been made to
prevent,
prevent,
it
nor does
intend to
nor
Seth,
procured
if he
a customer on their
thought
intending
has it
been
ever
terms, and
no
means certain that
prevent,
selling through
the seller from
an-
if
had made demand
the Bram-
he
becoming
other
liable for two
they
paid
bles
would not have
without
commissions, should the seller do so. As
suit.
Judge
Chief
Sobeloff observed in his dissent
“Reсognizing that Seth cannot main-
Seth,
in Horn v.
201 Md.
1. partner/owners In the instant one need not deed of sale as one why listing farm, agent, Century but, above, Century to discern as noted had might have been reluctant to sue Westside no valid with Westside Farms for the commission. Not had Don Farms. Robertson, undisputed It that Hellhake was
searching prior for a farm for BUSH, Claimant-Appellant, the Gabiolas F. Jerome learning of the that Westside fact Farms looking buyer. for a Once Hellhake DISTRICT BONNERS FERRY SCHOOL listing, he contacted learned #101, Employer, and State Insurance attempted split a 21 and work out deal Fund, Surety, Upon Century the commission. 21’s refusal cooperate, the sale was consummated and a com- both Hellhake Peters received Idaho, Special State of Indem- Industrial efforts, certainly for their but mission Fund, nity Defendants-Respondents. allegedly the commission due to 21. 13238. No. To allow 21 to maintain suit Supreme оf Idaho. Court against Hellhake and Peters under these (1) would circumstances mean that there is Oct. agents requirement listing demon- seller/obligor pay a refusal strate listing agent owing to the
the commission brought interfer- an action for tortious agents against with contract other
ence (2) buyers agents
buyers; their who previously a who has
purchase from seller property, sale and who have
listed the
knowledge listing, expose themselves liability for listing, prior
regardless of terms of the (3) not seek need against party who owes the
remedy precedent condition
commission alleged damages person
seeking from a contract, even
have interfered with assuming listing agent, a valid
though the against might a suit succeed in so Judge As well
seller. Chief Sobeloff it,
expressed real brokers estate surprise” learn with courts
“will they expose view them-
may take the liability damages under such
selves were
commonplace circumstances as here
involved. *8 Lamanna, River, M. Priest
Nicholas Lyons, Ferry, appel- James F. Bonners lant. Dolan, d’Alene,
Philip E. Max Coeur M. Boise, Sheils, Jr., appellee.