C. Forsman Real Estate Company v. Hatch , 97 Idaho 511 ( 1976 )

McQUADE, Chief Justice

(dissenting).

I believe that a real estate commission contract employing a broker to find a purchaser of community realty requires the execution and acknowledgment of both spousal owners. The applicable Idaho statute of frauds governing this area is unique in its terminology. Our provision requires that a contract for procuring a purchaser for real property be “. . . signed by the owner of such real estate.” We must assume this choice of language was deliberate on the part of the Legislature which enacted this provision. Statutes from our sister states refer to “the party to be charged” with respect to the signature requirement. Therefore the cases cited by the majority are distinguishable and not controlling, because the courts in those instances were construing statutes significantly different from the comparable Idaho provision.

The real property in issue was acquired by respondents during the existence of their marriage, and was found to be community property. Community property in this state does not belong to one spouse as against the other. Rather, both spouses have vested, equal and undivided ownership interests in the property.¹ This is in contrast to separate property, which belongs either to one spouse or the other.

If we accept as true the premise that both spouses share equally in the ownership of the community real property acquired during coverture, and if I.C. § 9-508 requires the owner of real estate to sign a real estate commission contract before it will be deemed valid, then it must follow that before a real estate commission contract to find a buyer of community real property such as the one in issue can be declared legal, both members of the community must join in its execution. This conclusion follows because the “owner” of community real property is neither the husband alone nor the wife; but rather both the husband and wife.

In addition, I.C. § 73-114 provides in pertinent part:

“Statutory terms defined. — Unless otherwise defined for purposes of a specific statute, . . . the singular number includes the plural . . .”

I.C. § 9-508 does not define “owner.” Thus we must assume that the word “owner” includes the “owners,” which in the case of community realty, means both the husband and wife.² Had the Legislature desired a contrary meaning, it could have used the term “an owner” instead of “the owneror perhaps language like “the owners, or any one of them.”

Furthermore, I am not persuaded that the case of Thomas v. Young, supra, is controlling in this appeal. The Court’s opinion in that case does not indicate reliance upon any statutory and case authority; whereas the instant action presents us directly with an unavoidable question of statutory construction. Nor do I believe the majority’s handling of the significance of the Houser and Kerr cases is correct. The majority reasons that had the Legislature chosen to utilize the words “party to be charged” in enacting I.C. § 9-508, rather than the language it eventually opted to employ, then it would have been necessary for only the broker and not the seller to sign the real estate commission contract for it to be valid. I do not believe that had the Legislature used the phrase “party to be charged,” a broker could have enforced a real estate commission contract against the party seeking to obtain a willing purchaser in the absence of the latter’s signature. Such an interpretation would be contrary to the purpose of the statute of frauds in this area which is to prevent fraudulent or unfounded claims of brokers.

Finally, I am not in agreement with the majority’s view that its interpretation is consistent with public policy. The majority opinion protects the realtor against the owner of real property, even'though the former is in most instances more knowledgeable and expert than the latter. 'The majority opinion does nothing to safeguard against the possibility of a broker generating a fee by persuading one spouse, unschooled in business matters, to sign a brokerage contract, which the other spouse might never had agreed to. Since both spouses must agree before community realty can be conveyed, it would, make sense to require both spouses to agree to the procurement of a broker to bring about the conveyance as well. Otherwise, we invite brokers to accumulate promises of commissions from the unknowing when there is no real expectation that a sale will ever result.

1 . See Anderson v. Idaho Mutual Benefit Association, 77 Idaho 373, 377, 292 P.2d 760, 762 (1956) and cases cited therein.

2 . See McDowell v. Willis, 85 Cal.App. 496, 259 P. 765 (1927) ; State v. Hamilton, 298 P.2d 1073 (Okla.Cr.App.1956), reading “owner or lessee” to include more than one in statute relating to formation of a grazing district; Houser v. Hobart, 22 Idaho 735, 127 P. 997 (1912), where this Court held the word “party” to include the plural.