William M. RICHARDSON, Appellant, v. KELLEY LAND AND CATTLE COMPANY, a corporation, Appellee.
No. 74-1162.
United States Court of Appeals, Eighth Circuit.
Decided Oct. 21, 1974.
Submitted May 17, 1974.
Terence A. O‘Keefe, Aberdeen, S. D., for appellee.
Before GIBSON, Chief Judge, WEBSTER, Circuit Judge and WILLIAMS, District Judge*.
Paul X Williams, J., filed a dissenting opinion.
WEBSTER, Circuit Judge.
This is an appeal from the dismissal of an action to collect a real estate broker‘s commission. We affirm. The following facts, as related in appellant‘s brief, support our holding:
On May 13, 1971, William M. Richardson and Kelley Land and Cattle Co. entered into an exclusive listing contract in St. Paul, Minnesota. The listing contract entitled Richardson to a real estate broker‘s commission provided he produced before May 1, 1972 a purchaser for the Katy Hereford Ranch, located in Brown and McPherson Counties in South Dakota. The listing contract specified that the purchaser pay $400,000 cash and that the date of possession of the ranch was “to be agreed upon.”
Following a trial to the court, Judge Axel Beck dismissed the action on the ground that the offer procured by Richardson, as evidenced by the “uniform purchase agreement” drawn up after the meeting, did not satisfy the “cash sale” terms of the listing contract but instead specified deferred payments. We agree. The authorities cited in appellant‘s own brief state that a “cash sale” is one wherein payment and delivery are concurrent. See 6 Words and Phrases 444-445 (1966); Huber v. Mullan, 246 F.Supp. 8, 16 (D.Md.1964), aff‘d, 350 F.2d 872 (4th Cir. 1965). “Delivery,” however, refers not to the date on which possession is transferred, as Richardson implicitly argues, but rather to the closing date or the date on which the deed to the property is transferred. See 26 C.J.S. Deeds § 42 at 687 (1956): “[I]n determining whether the grantor intended delivery, the test is not whether the grantor has retained possession or control of the property conveyed, but rather whether he has retained possession or control of the deed.”
We cannot accept Richardson‘s argument that the letter drafted on April 30 is alone determinative of the case. That letter, which referred to a $400,000 bid by the Holts and a possession date of December 1, 1972, expressly provided that a “Purchase Agreement” would be forthcoming. Thus, whatever the significance of this letter,3 it must be considered in the context of the “uniform purchase agreement” which followed. That document clearly states that payment of $360,000 of the purchase price would be deferred until the possession date, six months after the closing date. Moreover, the evidence of the negotiations contained in the record before us indicates that the Holts never intended to pay the full price in cash concurrent with or prior to the transfer of title.
In order to meet the “cash sale” terms of the exclusive listing contract, the Holts must have offered to tender the full $400,000 on June 1, 1972, the
Affirmed.
PAUL X WILLIAMS, District Judge (dissenting).
I respectfully dissent.
The undisputed facts in this case show that the landowner, by written contract, listed lands for sale with the broker. The listing required that the broker on or before a designated day produce a buyer who was ready, able and willing to buy the land for the price and according to the terms of the listing. In my opinion the undisputed facts show that the broker produced such a buyer within the prescribed time and therefore is entitled to his commission.
It must be borne in mind that the written listing by the landowner did not require the landowner to sell. It obligated him to pay the broker a commission if and when the broker produced a qualified buyer on or before the prescribed date.
The language of the written listing is not in dispute. The fact that a ready, willing and “anxious” buyer was produced by the broker is not in dispute. In my opinion, the “ability” of the buyer to buy for cash was amply demonstrated and nothing in the trial Judge‘s opinion indicated to the contrary. This is all that the broker was required to do to entitle him to his commission.
The trial court and the majority here hold that because a contract of sale between the landowner and the prospective buyer was not executed within the exclusive listing period and the cash selling price paid within that period the broker did not produce a ready, able and willing buyer and is not entitled to his pay. But the facts are to the contrary. They show that the listing recited a cash selling price with a delivery of possession date “to be agreed upon.” No obligation to pay the cash price would arise until a delivery of possession date was agreed upon because either actual delivery of possession or a contractual substitute for such delivery is essential to a sale of land. It is elementary that the buyer has no obligation to pay an agreed cash selling price unless and until the seller agrees to sell.
In this case the landowner, for reasons satisfactory to himself, began to equivocate just as soon as he realized the broker had produced a buyer ready, able and willing to buy. And he had the right to retain his land—certainly he had not obligated himself to sell it.
But the actual contract for the sale of the land is not before the Court. The contract before the Court is the listing contract where the landowner contracted to pay a broker‘s commission when a ready, able and willing buyer was produced within the prescribed time.
In my opinion the undisputed proof shows that the broker in apt time produced such a buyer and the Court should order the landowner to pay the contracted commission. The workman is worthy of his hire.