Limb v. Federated Milk Producers Association

461 P.2d 290, 23 Utah 2d 222, 1969 Utah LEXIS 525

• Court: Utah Supreme Court
• Decided: November 12, 1969
• Docket: 11543
• Status: Published

Opinions

ELLETT, Justice.

The plaintiff is a real estate broker. The defendant Kenneth T. Allred on behalf of defendant Federated Milk Producers Association, Inc., signed and gave to one John Williamson a letter in the following words:

October 25, 1963

Mr. John Williamson

Salt Lake City, Utah

Dear Sir:

This is to authorize you to negotiate with clients for the purchase of 723 South State Street, Salt Lake City, Utah, those premises heretofore operated under the name of Cloverleaf Dairy. The terms are as follows:

1. The sale price and terms must be agreeable with us.

2. This authorization can he terminated by either party at any time, and will be automatically terminated should said property be sold to anyone.

3. You are only authorized to negotiate with the following persons for the sale of said property:

Sears Co. Sid Horman

Huntington-Maxwell Hardware Co.

Bonneville on the Hill K. T. A.

Capital Chev. K. T. A.

Salt Lake Transfer K. T. A.

4. In the event that there is ultimately a contract of sale or sale entered into with any of the foregoing, then and in that event, we agree to pay you a sales commission of 5% of the selling price.

FEDERATED MILK PRODUCERS ASSOCIATION, INC.

By: /s/Kenneth T. Allred

On or about February 7, 1964, Federated Milk Producers Association, Inc., was merged with and into defendant Federated Dairy Farms, Inc.

Mr. Williamson was a real estate salesman in the office of plaintiff. Neither plaintiff nor Mr. Williamson was able to sell the listed property. On April 27, 1964, a letter of termination of the authority granted to Mr. Williamson was mailed to him, but because of wrong address he never received it. In his deposition Mr. Allred, who had signed the letter of authority, said that he phoned Mr. Williamson prior to the letter of termination and advised him that such a letter was being mailed and if Mr. Williamson had any prospects, he should let Allred know, as the property was being listed with another realtor. Allred further testified that Williamson said, “Go ahead and list the property because he [Williamson] had no further interest in it.” Mr. Williamson in his deposition stated that he would not deny the conversation but did not believe it occurred.

In May of 1964 the other realtor painted in a conspicuous place on a fence around the property a large sign about ten feet by twelve feet stating that the property was for sale by that realtor.

Almost two years later that relator induced Sears to buy the property, and the •defendant paid him the regular real estate commission. This action was thereafter commenced by plaintiff and Mr. Williamson for a commission in the amount of $11,550 claimed to be due under the letter set out above. Mr. Williamson was dismissed as a party plaintiff by the court on motion of defendant. Thereafter, both parties moved for summary judgment, and that of the defendant was granted, while that of the plaintiff was denied. The plaintiff appeals from the denial of his motion for summary judgment and also from the granting of the summary judgment in fav- or of the defendant.

In his deposition Mr. Limb, the plaintiff, testified concerning a conversation with Mr. Williamson prior to the date of the letter written by the defendant. He stated:

He told me that he understood the property was to be for sale and he had contacted and was to contact a Mr. All-red; and we discussed the property and I told him if I could help him to let me know, on the listing.

It will be noted that the letter upon which the plaintiff relies for recovery is directed to Mr. Williamson alone, and the promise of the defendant to pay a commission is made to Mr. Williamson and not to Mr. Limb. It is apparent that Mr. Williamson got the agreement in his own name and that at that time Mr. Limb intended to assist him in the listing.

Section 61-2-10, U.C.A.1953, reads;

It shall be unlawful for any real estate salesman to accept a commission or valuable consideration for the performance of any of the acts herein specified from any person, except his employer, who must be a licensed real estate broker.

It is,- therefore, evident that Mr. Williamson being only a real estate salesman could not collect a fee from the defendant and that the promise to pay him would be unenforceable. Mr. Limb attempts to substitute himself as a party and collect on a joint contract.

This is not the case of a contract made by an unauthorized agent in the name of a principal who may ratify the contract as made and thus make himself liable to the third person and also keep the benefits which a third person intended to confer upon him. There is nothing for Mr. Limb to ratify, as he is not named as a party to the letter.

Even if the contract were not void, Mr. Limb could not recover in this case. Mr. Williamson was not a broker but was attempting to act as one when he secured the letter from the defendant. A broker employed by an owner to purchase or sell real property bears a fiduciary relationship to his employer,¹ and the applicable law is stated in 3 Am.Jur.2d, Agency, § 323, to be:

If the contract made by an agent acting for an undisclosed principal involves elements of personal trust and confidence as a consideration moving from the agent, contracting in his own name, to the other party to the contract, the principal, while . the contract remains executory, cannot, against the resistance of the other party, enforce.it, either to. compel performance by the other party or to recover damages for a breách.

If the law were otherwise, a party would be deprived of his right tó choose those fiduciaries with whom he wished to deal.

Before Mr. Limb could recover in this case, he himself must have had a contract in writing with the defendant. See the Statute of Frauds, Section 25-5-4(5), U.C.A.1953.

There is no disputed issue of fact in this case which would require a trial on the merits. The judgment of the trial court is, therefore, affirmed.² Costs are awarded to the respondents. ,

TUCKETT, J., concurs.

1 . 12 C.J.S. Brokers §§ 6 and 8.

2 . The dissent in this ease is without merit. The law is well settled that a trial court should be affirmed if on the record made it can be. The general law is stated in 5 C.J.S. Appeal & Error § 1464(1) as follows: “ * * * The appellate court will affirm the judgment, order, or decree appealed from if it is sustainable on any legal ground or theory apparent on the record, even' though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action, and this is true even though such ground or theory is not urged or argued on appeal by appellee, was not raised in the lower court, and was not considered or passed on by the lower court. * * * ”

The above paragraph was inserted to answer the original dissent of Mr. Justice Henriod. Since he has amended that dissent and filed another, it is necessary to make a further explanation herein. 1-Ie now cites ten eases to show what the law in Utah is. I have no quarrel with any of those cases, for in each of them except that of Aaron v. Holmes, 35 Utah 49, 99 P. 450, the court refused to reverse the trial court on grounds not presented below. In the excepted case this court properly held: “In the first instance, if the complaint wholly fails to state a cause of action, objections to it on that ground may be successfully urged at any time. In the case of Flemetis v. McArthur, 119 Utah 268, 226 P.2d 124 cited in the dissent, Mr. Justice Latimer said: “This court will not found a reversal upon defects which were not put in issue in the court below, but which are suggested for the first time on appeal.” The distinction which the dissent fails to recognize is that the appellate court will affirm a judgment on grounds not urged below, but will not reverse the lower court on errors claimed for the first time on appeal.

In addition to the citation from 5 C.J.S., supra, the following quotations are submitted as illustrative of what the law is:

Hall v. Florida Board of Pharmacy, 177 So.2d 833 (FIa.1965) : “Assignments of error are required to be filed by the appellant or an appellee who seeks reversal of the lower court, but not by appellee who seeks no affirmative relief on appeal.”

Anderson v. Gousset, 60 Ill.App.2d 309, 208 N.E.2d 37 (1965) : “Under well established rules of procedure, this assumption will be conclusive in this Court since we will not search the record for the purpose of reversal but only to affirm.”

Woolfolk v. Semrod, 351 P.2d 742 (Okl.1960) : “The successful party may, without cross-appealing or assigning errors, save the judgment by showing that errors were committed against him below which, if corrected, will make the result reached below correct.”

Mr. Justice Henriod has now amended the second dissent and filed his third one. No further reply is necessary except to state that his dissenting Honor and I do not read the record in this case with a unanimous understanding.