Jackson v. Free

442 So. 2d 1346
CourtLouisiana Court of Appeal
DecidedDecember 14, 1983
Docket83-401
StatusPublished
Cited by7 cases

This text of 442 So. 2d 1346 (Jackson v. Free) 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
Jackson v. Free, 442 So. 2d 1346 (La. Ct. App. 1983).

Opinion

442 So.2d 1346 (1983)

Carl W. JACKSON, d/b/a Carl W. Jackson Real Estate and Insurance Agency, Plaintiff-Appellant,
v.
Henry Claude FREE and Iva Peavy Free, Defendants-Appellees.

No. 83-401.

Court of Appeal of Louisiana, Third Circuit.

December 14, 1983.

Baggett, McCall, Ranier, Robert C. McCall, Lake Charles, for plaintiff-appellant.

Levingston, Tynes & Liles, David L. Levingston and Henry R. Liles, Lake Charles, for defendants-appellees.

Before GUIDRY, FORET and KNOLL, JJ.

FORET, Judge.

Carl W. Jackson d/b/a Carl W. Jackson Real Estate and Insurance Agency (plaintiff) brought this action to recover a real estate commission allegedly owed to him under the terms of a listing agreement. Named defendants are Henry C. Free and his wife, Iva Peavy Free. After trial on the merits, the trial court rendered judgment *1347 in favor of defendants, dismissing plaintiff's demands against them.

Plaintiff appeals and raises the following issues:

(1) Whether the trial court erred in failing to find that, under the terms of the listing agreement, plaintiff was entitled to receive a commission on the sale of certain immovable property by defendants to a third party.
(2) Whether the trial court erred in finding that plaintiff was not the "procuring cause" of said sale.

FACTS

There is no dispute regarding the following facts. Plaintiff is a licensed real estate broker. On January 5, 1978, plaintiff and defendants entered into a contract whereby plaintiff was to attempt to sell certain immovable property (the property) owned by defendants. That contract contained the following pertinent provisions:

"...
In consideration of your agreement to list the property herein described and to use your efforts to find a purchaser, I hereby grant you the exclusive right for 365 days from date hereof and thereafter until you receive from me a 15 day written notice terminating this agreement to sell (a description of the property and the terms under which it was to be sold follows)........"
"...
If said property is sold before the expiration of this agreement, by myself, or any other person, I agree to pay you a commission of 10% if it be sold within twelve months after such expiration to any person with whom you have had negotiations, I agree to pay you a commission of 10%."
("You" and "yours" refer to plaintiff, while "I" and "myself" refer to defendants.)

On March 21, 1978, plaintiff received a written "OFFER TO PURCHASE" the property from Glenn Alexander. This written offer provided that Alexander would make a down payment of $30,000 cash, and execute a promissory note made to defendants in the amount of $52,000, bearing interest at the rate of 7¼ per annum from date, and payable in monthly installments of $354.74. However, these figures were scratched out in the written document containing Alexander's offer, and the down payment was changed to $38,000 cash, with the balance of $44,000 to be represented by a promissory note identical in all other respects to the one mentioned above. The initials HCF appear by these changes and another change reserving the mineral rights, etc., to both of the defendants rather than to Mr. Free alone. Alexander rejected this counter-offer.

Nothing further happened regarding the property until February 7, 1980, when defendants sold the property to Alexander and his wife (the Alexanders) under the same terms as those contained in the original "OFFER TO PURCHASE" made by Alexander. Upon learning of this sale, plaintiff filed the instant suit, alleging that he was entitled to a commission on the sale.

EXISTENCE OF LISTING AGREEMENT

Plaintiff contends that the trial court erred in failing to find that he was entitled to a commission on the sale of the property. As noted above, the listing agreement was entered into by plaintiff and defendants on January 5, 1978. The agreement granted plaintiff the exclusive right to use his efforts to find a purchaser for the property for 365 days after the date on which the agreement was executed, and thereafter until plaintiff received from defendants a 15-day written notice terminating the agreement. Plaintiff argues that the trial court erred in finding that defendants had sent such a notice.

Plaintiff testified that he never received written notice from defendants, terminating the listing agreement. On the other hand, Mrs. Free testified that she did mail a letter to plaintiff to that effect. A copy of that letter was introduced in evidence. Mrs. Free stated that she sent the letter to plaintiff after Mr. Free consulted with an *1348 attorney, and that the letter contained the exact language suggested to Mr. Free by this attorney. She further stated that the letter was mailed to plaintiff on December 15, 1978.

Mr. Alexander, who is also an attorney, testified that Mrs. Free showed him the listing agreement, and asked him how long it would be in effect. She also told him that defendants wanted to terminate the agreement. He then told her that she needed to write a letter to plaintiff in which she would give him written notice to terminate the agreement. However, she told him that she had already done this after consulting with another attorney. Alexander stated that this conversation took place around the end of 1978.

The trial court noted the above testimony and the evidence showing that defendants filed a written complaint against plaintiff with the Greater Calcasieu Board of Realtors on March 29, 1978, in which they alleged that plaintiff failed to tell them that he would be due a commission on the sale of their property, even if it were sold to someone whom defendants had contacted before entering into the listing agreement. The trial court then found that Mrs. Free had written the above mentioned letter to plaintiff, giving him written notice to terminate the listing agreement. We agree with the trial court's finding. Thus, the listing agreement was terminated at the end of the primary period. This was long before the property was sold to the Alexanders.

We must now determine what, if any, effect the extension clause contained in the listing agreement had on plaintiff's alleged right to receive a commission on the sale of the property. The extension clause provides that,

"... if it [the property] be sold within twelve months after such expiration [of the listing agreement] to any person with whom you [plaintiff] have had negotiations, I [defendants] agree to pay you a commission of 10%."

We have already found that the listing agreement expired on January 5, 1979. Thus, the extension clause was no longer in effect on February 8, 1980, when the property was sold to the Alexanders, and plaintiff was not entitled to a commission on that sale by virtue of said clause.

Further, as noted in Harkey v. Gahagan, 338 So.2d 133 (La.App. 2 Cir.1976), on page 135:

"The purpose of the extension clause in a real estate listing contract is to insure the realtor's right to a fee when the property owner sells the property subject to the listing after the expiration of the primary term to a purchaser who had been located or otherwise interested in the property by the realtor's effort. The realtor does not have to be the procuring cause in order to activate the extension clause. He need not have been involved in active negotiation with the purchaser at the time of the expiration of the primary term.

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Bluebook (online)
442 So. 2d 1346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-free-lactapp-1983.