*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-appellant 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 the 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 breach 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 agreement, 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), 614 P.2d 420 wherein this Court Regardless of the merit in the application dis discussed the of I.C. 53-309 § trict theory court’s as the basis 53-310, and the interconnected I.C. § dismissal, opinion for its we are of the single partner held that a with no actual theory present another in the case authority partner- could not bind the whole which should have been initially addressed ship through a unilateral act which was not dispositive and which is of the case. It is a the usual business of the well-established rule that where the order ap- This Court stated that an affirmative of the lower court is correct but entered on pearance of actual or the conduct- theory, a different the order will be af ing partnership way business in the usual theory. firmed on the correct Matter of required would before such unilateral act Revello, 829, (1979); 100 Idaho 606 P.2d 933 binding could be considered as Compton, Robison v. 97 Idaho 549 P.2d nership. Hodge specif- While the case dealt (1976); City Weippe Yarno, v. 96 ically partnership with a contract of sale of (1974). 528 P.2d 201 land, and the instant action concerns a list- 53-309, ing

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 behalf 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 “considered 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 proceeding.” 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 majority 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, Possession, 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 lack 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 Century 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 argued 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 abso- 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 or 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 material 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 614 P.2d 420 added.) attempted If testify Hellhake Bros., Geisler, 734, Marshall Inc. v. 99 Idaho trial, without a having foundation been (1978), clear, P.2d 933 make the mere laid, Rudy that Tom had not consented to fact that less than partners signed listing agreement, it would be inadmis- listing agreement does not mean that sible, unsupported opinion, either as an or signing partners were without authority hearsay. 56(e) as precludes I.R.C.P. partnership. bind The unsupported consideration of such an state- may express, ners implied, apparent or ment an affidavit. Consequently, there authority to bind the Issues are no in the support facts record to concerning agent’s authority an must be majority’s legal theory. new resolved g., the trier of E. fact. Clark v. Gneiting, 10, (1972). Ill agent’s

The extent and nature 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 between 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 property 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 “Recognizing that Seth cannot main- Seth, in Horn v. 201 Md. 95 A.2d 312 damage, tain suit if he has suffered Seth, broker, Horn, (1953), where sued suggested opinion it is that his (both listings another broker had written damage put consisted that he was Bramble, owner): from Mrs. necessity suing the Brambles. estate brokers . . . will nothing learn with answer is that there is to indicate “[r]eal surprise expose they themselves that Mrs. Horn advised the not Brambles liability damages Seth, pay under such circum- or that she even discussed his stances .... commisssions with at 316-17 them.” Id. C.J., (Sobeloff, dissenting)'(emphasis add- attention, however, “Our needs to be ed). Bramble-Lynch agree- focused on the ment, but on Brambles’ I anything, am not aware of either in this pay with Seth to him commissions when particular listing or in law performed he had his service. It is for general, prohibits which a seller from sell- alleged interference with the latter ing through a second and thus becom- that Seth sued Mrs. Horn. ing liable two commissions. Since Hell- it, “As see proved we Seth has no case nothing hake and Peters did which inter- against her damage and has suffered no (alleged) fered with Westside con- Farms’ right from her conduct. His of action simply tractual relations with I against Brambles, all, if it arose at fact, liability cannot see how arises. *7 complete. remained Mrs. Horn’s ac- brought were it not the sale about tivities did not weaken Seth’s claim Hellhake, Century the efforts of Peters against the Brambles. Whatever effect 21 would have not a claim for commis- may these activities Mrs. Horn have anyone. sion from underlying listing If the (if any) had on the oral be- valid, Century were 21 would Lynch, they tween the Brambles and actually resulting a received benefit to were innocuous as to the be- it from the actions of Peters and Hellhake. tween Brambles and Seth. I find it more than a little ironic that Cen- suggestion tury “There no in the record suing, 21 is now for tortious interfer- contract, that the Brambles would be unable to ence very people who any judgment against meet them for created alleged right re- to proof special commissionsand no dam- alleged listing ceive the benefit of its con- age. simply to sue Seth declined tract with Westside Farms. case, ponder long

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 of 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.