Gardner v. Batsakes

164 N.W.2d 707, 13 Mich. App. 454

• Court: Michigan Court of Appeals
• Decided: March 12, 1969
• Docket: Docket 452
• Status: Published

Opinions

T. G. Kavanagh, P. J.

This is an action by a real estate broker for a commission in the amount of $5,000 claimed to be owing under a real estate listing agreement. A jury returned a verdict for plaintiff, and the court denied defendants’ motion for judgment notwithstanding the verdict and entered judgment for plaintiff. Defendant appeals.

Under our court rules a motion for a directed verdict is a prerequisite to a motion for judgment notwithstanding the verdict. GCR 1963, 515.2. See also 2 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed), 1967 Pocket Parts, Authors’ Comments, p 71. Since no motion for directed verdict was made to the trial court, denial of defendants’ motion was not erroneous.

On December 11, 1963, plaintiff broker and defendants entered into a listing agreement in the form of an “Offer to Sell”, in which plaintiff was granted, for a one month period, the exclusive right to sell defendants’ bar in Ann Arbor. The “Offer to Sell” provided that if, during the one-month period, plaintiff produced a purchaser ready, willing and able to purchase the business under the terms set forth therein, defendants would pay him a commission of 10% of the sale price. There were two “Offer to Sell” forms signed by the parties, one for plaintiff’s reference and assistance in negotiating with prospective purchasers and the other retained by defendants.

On January 2, 1964, plaintiff procured an “Offer to Purchase” the bar. After two unsuccessful attempts to present this offer, the broker notified sellers, in a certified letter received by them on January 6, 1964, that he had a ready, willing and able purchaser.

At the invitation of defendants, a meeting was held on January 15, 1964, whereupon sellers, reading buyer’s offer for the first time, pointed to certain variances between it and their offer to sell, namely:

1. Buyer’s provision that sellers cooperate in obtaining a lease with a renewal option.

2. Buyer’s provision that sellers not compete for 5 years within a 10-mile radius.

3. Buyer’s offer to pay the purchase price in monthly installments of $400 each as contrasted with sellers’ interpretation that their offer called for monthly payments of $400 each, meaning each partner.

The testimony is undisputed that the buyer, upon hearing these objections, agreed immediately to eliminate the first two provisions, hut, after reviewing sellers’ books, refused to purchase on terms of $800 monthly installments. No sale was consummated, therefore, solely because of failure to reach an agreement on the payments.

The jury, having been instructed by a summarization of the parties’ respective positions, including the two interpretations regarding the payments, returned their verdict for plaintiff.

Defendant now claims on appeal that buyer’s abandonment of his first two provisions came too late as the listing agreement had expired. We recognize the principle that the date of performance specified in a listing agreement is binding on the parties in the absence of any agreement between them changing that date. However, defendants, albeit in an attempt to show that they had dealt in good faith, testified that the January 15, 1964, meeting was arranged by them to afford plaintiff an opportunity to present a ready, willing and able buyer. Mr. Yetogianis stated that the purpose of the meeting was:

“To complete the deal.”

Mr. Batsakes, when explaining one postponement of an earlier meeting stated:

“I told him [plaintiff] that I have to be away that afternoon [i.e. Friday, January 3, 1964] — if it was possible that I can meet him any day after a week.” (Emphasis added.)

This testimony allowed the jury to conclude that defendants, purportedly dealing in good faith, were willing either to extend or to waive the designated period for negotiations until such time as a meeting could be arranged. The expiration date reflected in the listing agreement was not expressly of the essence of the contract. It could be orally waived or extended. “Time of performance of a contract may be extended by parol, and this is especially true where time is not expressly made the essence of the contract.” Frazer v. Hovey (1917), 195 Mich 160, 168.

*

We recognize the principle that a broker does not perform in accordance with a listing agreement with the owner if the offer which he obtains from a proposed purchaser contains provisions other than those on which the owner lias agreed to sell. However at the January 15, 1964, meeting, the only irreconcilable variance revolved around the differing interpretations of sellers’ language regarding monthly payments, the other points of difference having been waived. Sufficient evidence was presented to support the jury’s finding, which necessarily required construction of the language regarding the payments. We find no error in refusing to heed defendants’ assertion that the expiration date was binding on plaintiff when, as defendants’ own testimony at trial reflects, they scheduled in good faith a meeting at their earliest convenience for the purpose of completing the deal.

Affirmed. Plaintiff may tax costs.

Levin, J., concurred with T. G. Kavanagh, P. J.

It was said in that case that:

“There is considerable conflict in the testimony. But an examination of the testimony of defendant shows that he did not treat time as of the essence of the contract, for he testified that after November 1st Re was ready to go ahead with it, and that even down to the day this suit was started the plaintiff 'could have had that property if he had come up and paid his money, and carried out the contract,’ and that he would have taken the money on December 27th, but saiil there was a misunderstanding as to the hour of the meeting.” (p 107.)