Bennett v. Bobby J. Gauthier Contractor, Inc.

242 So. 2d 595, 1970 La. App. LEXIS 4844
CourtLouisiana Court of Appeal
DecidedDecember 21, 1970
DocketNo. 8243
StatusPublished

This text of 242 So. 2d 595 (Bennett v. Bobby J. Gauthier Contractor, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bennett v. Bobby J. Gauthier Contractor, Inc., 242 So. 2d 595, 1970 La. App. LEXIS 4844 (La. Ct. App. 1970).

Opinion

BLANCHE, Judge.

Plaintiff, Clayton W. Bennett, a duly licensed real estate broker, filed suit against defendant, Bobby J. Gauthier Contractor, Inc., for a real estate commission on sales of new homes constructed by defendant to Martin S. Hemphill and to Bryan Joseph Gauthier (hereinafter respectively referred to as the “Hemphill sale” and the “Gau-thier sale”). Defendant answered plaintiff’s petition as amended denying the allegations thereof and in particular disputing plaintiff’s version of the alleged contract or agreement existing between the litigants. At the conclusion of the trial the lower court rendered Oral Reasons for Judgment, resolving the contradictions in the testimony in favor of plaintiff with regard to the Hemphill sale but denying plaintiff a commission on the Gauthier sale. In accordance therewith a judgment was rendered, read and signed in favor of plaintiff and against defendant in the principal sum of $1,000, from which judgment defendant perfected this suspensive appeal. Plaintiff answered the appeal requesting that the judgment be amended in accordance with plaintiff’s prayer for relief. We affirm.

The trial judge set forth his findings of fact and reasons for judgment as follows:

“As we see this problem, these parties probably never really had a complete meeting of the mind on just exactly what the dealings were to be as between them. I do believe a preponderance of the evidence is to the effect that both the plaintiff and the defendant understood that on any house owned by the defendant which was to be sold, a $1,-000.00 commission would be paid and, according to Mr. McDowell and the defendant, was to be paid directly to the person making the sale. In the case of Bryan Gauthier, (not related to the defendant) Mr. McDowell sold the house and the defendant paid him the commission. In the case of Hemphill, the question relates to who sold the house. Nobody was paid anything on that sale.
“I think the law is to the effect that once you determine procuring cause or you can show that the initial contact was such that through same a sale was ulti[597]*597mately consummated then the commission is due. I cite the case of Rolston vs. Buff. [130 So.2d 732 (La.App. 1st Cir. 1961)] I don’t think either of you question the fact that this is the law of Louisiana that the person who was the procuring cause of a sale is entitled to a commission. In trying to assess the evidence on the Hemphill transaction, I believe under the law Mr. Bennett is entitled to a commission on that particular sale; and, from the evidence, as I see it, the sum agreed upon was $1,000.00.
“I cannot in good conscience allow a commission to be paid, or order a commission to be paid, on the other house because I think it was paid and was paid pursuant to Mr. Gauthier’s understanding as to how it would be handled. The Court is going to render judgment in favor of Mr. Bennett and against Mr. Gauthier for the sum of $1,000.00, plus legal interest and costs of Court. Judgment will be signed accordingly.” (Oral Reasons for Judgment, Record, pp. 14, 15)

We are satisfied from our review of the record that the evidence clearly preponderates in favor of the conclusion that an agreement existed between plaintiff and defendant whereby defendant would pay the plaintiff a real estate commission in the sum of $1,000 on each house built by defendant and for which plaintiff procured a purchaser. Defendant’s president and majority, if not sole, stockholder, Bobby J. Gauthier, specifically admitted that if plaintiff “sold” such a house, defendant would pay plaintiff a $1,000 commission therefor. (Record, pp. 27,28, 30,130)

Bobby J. Gauthier testified, however, that it was his understanding that the agreement between defendant and plaintiff required not only the usual functions performed by a real estate broker but the additional requirements that the real estate broker not only “sell” the house but also follow through, process the proposed deal and, in effect, assure its consummation before plaintiff would be entitled to a commission.

It is clear that a real estate brokerage contract need not be in writing, nor does entitlement to a real estate commission necessitate the broker’s having an exclusive listing of the property for sale, Rolston v. Buff, 130 So.2d 732 (La.App. 1st Cir. 1961). In the normal situation all the real estate agent or .broker need show in order to be entitled to receive the commission is that his efforts were the procuring cause of The sale, Rolston v. Buff, cited supra. A real estate broker is considered the procuring cause of a sale and is entitled to a commission if he brings the parties together even though the parties conduct final negotiates themselves and even though the final transaction is consummated at a different price from that procured by the broker, Keating v. Lachney, 216 So.2d 906 (La.App. 1st Cir. 1968). Accordingly, defendant’s contentions with regard to the understanding of its president as to the additional requirements and obligations on the part of plaintiff as testified to by Bobby J. Gauthier before plaintiff would be entitled to a commission, require that defendant carry the burden of proving the existence of such additional obligations, which burden of proof we are satisfied from our review of the record defendant failed to carry.

We are further satisfied that the trial court committed no manifest error in concluding that plaintiff was entitled to the $1,000 real estate broker commission with regard to the Hemphill transaction for the reason that plaintiff was the procuring cause of the ultimate sale. The testimony is clear that the initial contact with Mr. Hemphill was procured by or obtained through plaintiff, whose employee or salesman, Shelby, J. Burns, III, first showed the house to Mr. Hemphill or his wife or both after plaintiff had discussed the matter with Mr. Hemphill.

The record further shows that because plaintiff was out of the state on a certain [598]*598Saturday when plaintiff had scheduled an appointment with Mr. Hemphill concerning the house, plaintiff requested Mr. Burns to keep the appointment. Inasmuch as Mr. Burns was inexperienced in calculating the appropriate allotment or credit to be given Mr. Hemphill for his old home which was to be taken by defendant in trade, Mr. Burns got in touch with Bobby J. Gauthier, who kept the appointment with Mr. Hemp-hill and who, together with Gary McDowell, drew up a purchase agreement which was signed by Mr. Hemphill. Mr. Gauthier testified that he then turned the matter back over to plaintiff, but this was denied by plaintiff and was not corroborated by the testimony of Mr. Hemphill. On the contrary, Mr. Hemphill significantly testified that he was not instructed by Mr. Gauthier to get back in touch with plaintiff, but instead knew that plaintiff was the person whom he needed to contact because he had started the negotiations and dealings with plaintiff. (Record, p. 53)

Mr. Hemphill testified that although he remained continuously interested in buying the home from the time he signed the first purchase agreement through the execution of the sale (Record, pp. 52, 53), he became disgusted when he was unable to obtain any follow-up thereon either from plaintiff or from Mr. Gauthier, and, in fact, tore up the original purchase agreement and finally advised Mr. Gauthier he would not go through with the deal unless somebody came to discuss it with him. Plaintiff, on the contrary, testified he was satisfied after his last personal conversation with Mr.

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Related

Keating v. Lachney
216 So. 2d 906 (Louisiana Court of Appeal, 1968)
Rolston v. Buff
130 So. 2d 732 (Louisiana Court of Appeal, 1961)

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Bluebook (online)
242 So. 2d 595, 1970 La. App. LEXIS 4844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-bobby-j-gauthier-contractor-inc-lactapp-1970.