Home/Wyoming Supreme Court/McCartney v. Malm

McCartney v. Malm

627 P.2d 1014, 1981 Wyo. LEXIS 322
CourtWyoming Supreme Court
DecidedApril 16, 1981
Docket5412
StatusPublished
Cited by32 cases

This text of 627 P.2d 1014 (McCartney v. Malm) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCartney v. Malm, 627 P.2d 1014, 1981 Wyo. LEXIS 322 (Wyo. 1981).

Opinion

ROONEY, Justice.

This appeal is from a judgment which denied the appellants-plaintiffs’ recovery of a real estate commission on the sale of appellees-defendants’ 245-acre farm near Pine Bluffs. Appellant McCartney is a licensed real estate broker in Cheyenne. Appellant Van LeMaster is McCartney’s sales agent. Appellee Kent Malm executed an agreement with appellant McCartney on December 15, 1978, which gave appellant McCartney the exclusive right to sell the farm during a six-month period. The farm was sold on December 3, 1979. This action was instituted to recover a commission under such agreement. The district court held that the agreement had expired by its own terms, and that a purported “extension clause” in it was meaningless and unenforceable.

Appellants present two arguments. They contend that the “extension clause” in the agreement should have been interpreted to require payment of the commission and that the commission was properly payable even without an “extension clause.”

We affirm.

After the listing agreement was executed 1 , appellants advertised the property as being for sale. Michael W. Kelly of Kelly Ranch Corporation (hereinafter referred to as Kelly) made inquiry as a result of a newspaper advertisement, and he indicated a desire to purchase. A price of $275,000.00 was agreed upon, but, for tax and other purposes, Kelly wanted to trade a *1016 ranch near Iron Mountain for appellees’ property. Appellees had a need for cash to pay existing debts and could not accept the trade. Therefore, Kelly, through his broker, initiated an effort to find a buyer for the Kelly property and, thus, make possible a three-way transaction.

In June 1979, Kelly’s broker located a potential buyer for the Kelly property. The buyer eventually refused to execute a purchase agreement, but in anticipation of such purchase, Kelly and appellees executed an option agreement which outlined the proposed three-way transaction. The option agreement was signed July 11, 1979, twenty-six days after expiration of the listing agreement. The option was to expire on September 1, 1979. Appellants were designated escrow agents under it. As part of the escrow, Kelly’s note for $10,000.00, payable October 1, 1979 to appellees, was deposited with appellants.

After the three-way transaction failed and after the option expired, appellees, as lessors, and Kelly, as lessee, agreed to a lease of appellees’ farm. Appellants were not advised of the lease but were told by appellees that the farm was being taken off the market. Appellee Kent Malm testified that at the time he did not believe a sale to Kelly was possible. The consideration for a one-year term of the lease was $28,000.00. The escrowed note for $10,000.00 was accepted by appellees as part payment. When appellees removed the note from appellants’ possession, appellees offered to pay appellants 7 percent of the amount of the note. Appellants refused the offer inasmuch as there had not been a sale. The lease provided that Kelly would have the right of first refusal upon the sale of the property by appellees.

Without knowledge of appellants or ap-pellees, Kelly continued efforts to find a party with whom an exchange transaction could be arranged. Such was done with the help of other real estate brokers. On November 5,1980, an agreement was executed under which appellees would exchange their property for Kelly’s Iron Mountain property and then exchange the Iron Mountain property for Colorado property of a third party. The Colorado property would be sold to a fourth party, resulting in appellees receiving $275,000.00 in cash. The transaction was completed in December 1979. The warranty deed transferring appellees’ Pine Bluffs property to Kelly was signed on December 3, 1979 and recorded December 10, 1979.

Upon learning of the transfer, appellants demanded payment of a commission on the sale of the Pine Bluffs property, contending that the listing agreement contained a six-month “extension clause” which would not expire until December 15, 1979, and that the commission was due under such clause. The request was refused, and this action was initiated. 2

APPLICABILITY OF THE “EXTENSION CLAUSE”

The trial court found that the agreement was adopted by the parties as a completely integrated agreement; that any ambiguity must be construed against the party who drafted it, and that:

“ * * * The plaintiff’s claimed right to a commission in this case is based upon the third paragraph of this printed material on the reverse side of the listing agreement. In reading the third paragraph, it is obvious that the same is not a complete sentence, contains no operative verb nor does it impose any obligation on a party or provide for any result to flow from the conditions recited in the dependent clause.”

The agreement was on a preprinted form prepared by appellant McCartney without assistance of legal counsel. Our discussion of this issue will be simplified by setting out the agreement in full. Front page:

*1017

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Cite This Page — Counsel Stack

Bluebook (online)
627 P.2d 1014, 1981 Wyo. LEXIS 322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccartney-v-malm-wyo-1981.