Reinhold v. Mallery

599 A.2d 126, 135 N.H. 31, 1991 N.H. LEXIS 130
CourtSupreme Court of New Hampshire
DecidedNovember 7, 1991
DocketNo. 90-438
StatusPublished
Cited by2 cases

This text of 599 A.2d 126 (Reinhold v. Mallery) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reinhold v. Mallery, 599 A.2d 126, 135 N.H. 31, 1991 N.H. LEXIS 130 (N.H. 1991).

Opinion

Brock, C.J.

The defendant, John Mallery, appeals from the Superior Court’s (Dickson, J.) order requiring the defendant to pay a real estate commission to the plaintiff, Reinhold Associates (Reinhold). As he did before the trial court, the defendant argues on appeal that Reinhold, as the defendant’s real estate agent, breached its fiduciary duty to him, thus foreclosing any claim by Reinhold for its commission. We agree, and therefore reverse the trial court’s order.

On July 18, 1986, the defendant entered into a listing agreement with Reinhold, a fully licensed real estate brokerage firm, wherein Reinhold received an exclusive right to secure a buyer for approximately 165 acres of undeveloped property in Franconia owned by the defendant. Pursuant to this agreement, Reinhold could sell the property for $3,179 per acre “or at any other price and terms accept[32]*32able to [the defendant].” Upon finding a purchaser for the property, Reinhold would be entitled to a commission equal to seven percent of the sales price of the property.

Jere Peabody was the broker for Reinhold Associates who worked with the defendant on the listing agreement and on finding a buyer for the property. At the time the listing agreement was executed, Peabody, with members of his family, owned approximately 225 acres of land in Franconia, a part of which was adjacent to the defendant’s property. The Peabody property was not for sale at that time, and Peabody did not inform the defendant about owning an adjacent parcel when the parties entered into the listing agreement. The Peabody property had road access to Route 116, and Peabody had previously obtained subdivision approval for a portion of the property.

Over the course of several months, Peabody spoke with several prospective buyers about the defendant’s property, but the only offer made was rejected as being too low. In early April 1987, Peabody attended a meeting concerning, in part, the possible sale of the defendant’s property. One of the parties at that meeting was Baronet, Inc. (Baronet), represented by its attorney, Robert Crowley. Crowley expressed Baronet’s interest in purchasing both the defendant’s property and the Peabody property. As described by Crowley at the bench trial in this matter, Baronet was “interested in trying to put together a land deal in Franconia. . . .” Moreover, Peabody, at trial, also expressed that Baronet’s interest in the defendant’s property was linked to its ability to also acquire Peabody’s property.

On April 14, Peabody, by telephone, presented a verbal offer from Baronet of $475,000 for the defendant’s property, which the defendant neither accepted nor rejected. Although there was some dispute at trial over whether, during this call, Peabody also discussed Baronet’s interest in the Peabody property, it is clear that any such discussion was brief, with Peabody telling the defendant that he would let the defendant know what transpired with regard to the Peabody property. On April 15, without further discussion with the defendant, Peabody and Baronet entered into an agreement giving Baronet, in effect, an option to purchase the entire 255 acres of the Peabody property for $1,055,000.

On April 16, Peabody left New Hampshire on vacation and did not speak with the defendant again until April 19. Calling from a phone booth in the Blue Ridge Mountains, Peabody told the defendant about signing the agreement with Baronet; however, at trial, Peabody could not recall if during this discussion he told the defendant the price he was receiving for the Peabody property. Peabody did [33]*33testify that he and the defendant “talked about the fact that I really felt we could get a full priced offer from [Baronet] . . for the defendant’s property.

On April 21, Attorney Crowley met with the defendant to discuss Baronet’s interest in the defendant’s property. Crowley presented the defendant with an uncompleted binder agreement and told the defendant that Baronet would agree to purchase the defendant’s property. Although they had discussed a price for the land, there was no price indicated on the binder agreement. The defendant took the document and told Crowley that he wanted his attorney to review it. Also during this meeting, the defendant asked Crowley about Baronet’s agreement to buy the Peabody property. The defendant demanded to know how much Peabody was receiving for his property, and indicated that, if Crowley refused to divulge this information, the defendant would refuse to sign the proposed binder agreement. Crowley expressed concern over revealing this information, but the dilemma was resolved when Peabody, still on vacation, happened to interrupt the meeting with a telephone call. Peabody told Crowley that he could release the price information, whereupon, Crowley gave the defendant a copy of the entire Peabody/Baronet binder agreement.

By letter on April 24, Crowley extended an offer on behalf of Baronet to the defendant of $535,000 for his property. Soon thereafter, however, the defendant rejected Baronet’s offer and stated that he thought that his property was worth a great deal more than Baronet was offering. On April 29, Crowley relayed this information by phone to Peabody. Peabody returned from his vacation during early May, and, with knowledge of the defendant’s rejection of the Baronet offer, nevertheless prepared a purchase and sale agreement for the defendant’s property for a price of $527,714. This price reflected the full value of the property indicated by the terms of the listing agreement. The purchase and sale agreement was signed by Crowley, for Baronet, and sent to the defendant on May 6. The defendant never returned the contract and did not communicate with anyone from Reinhold or Baronet until early August, 1987.

From early May until August, several attempts were made by Peabody, Reinhold, and Crowley to contact the defendant, but their attempts were to no avail. Specifically, there were two letters sent to the defendant in June, one from plaintiff Richard Reinhold and another from Crowley, notifying the defendant that Baronet was prepared to close the sale on August 1, 1987. The defendant did not appear for the closing, and the listing agreement with Reinhold ex[34]*34pired by its terms on August 9, 1987. Reinhold later brought this action to recover its commission.

After a two-day bench trial, the court denied the defendant’s requested ruling that Reinhold, through its broker, Peabody, had a conflict of interest by virtue of Peabody’s interest in selling his own property to Baronet while, at the same time, also trying to sell the defendant’s property to the same buyer. The court also denied the requested ruling that Peabody “had a duty to explain to the defendant ... that the desire of Baronet, Inc. to purchase both the Peabody property and the defendant’s property as a package” placed the defendant in a stronger position to negotiate for a higher price. The trial court ruled that Reinhold presented the defendant with a ready, willing, and able buyer and that, hence, the real estate firm was owed its commission under the listing agreement.

The defendant argues on appeal that Reinhold’s conflict of interest resulted in a breach of its fiduciary duty to the defendant. It has long been established that when an agent acts on behalf of two parties with adverse interests, unless there is proof that the principal knew of and consented to the agent’s so acting, the agent is barred from receiving his or her commission. Benway v. Cole, 99 N.H. 51, 53,

Related

Wainwright Bank v. Boulos
First Circuit, 1996
Wainwright Bank & Trust Co. v. Boulos
89 F.3d 17 (First Circuit, 1996)

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Bluebook (online)
599 A.2d 126, 135 N.H. 31, 1991 N.H. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reinhold-v-mallery-nh-1991.