Browning v. Johnson

DEVANY, Justice,

dissenting.

I respectfully dissent.

The broker agreement, by its very terms, certainly contemplated that broker would procure a loan proposal. If the broker had procured such a proposal and the developer had deliberately waited until after the 45-day period to accept such proposal, then of course the commission would be earned by the broker, according to the very terms of the broker contract.

The majority would place the developer in the untenable position where the broker could sit back during a 45-day exclusive period and do nothing; then, if during that 45-day period the developer received a proposal from another source which he honorably did not accept, in order to give the broker a full opportunity to perform and earn his commission, the developer would never be able to accept that proposal without incurring a commission expense to the broker who sat and did nothing.

I will agree that the developer's second exclusive agreement with Lomas and Net-tleton was unenforceable during the 45-day period protected by the broker’s contract. But once the broker let his 45 days elapse without submitting a proposal of his own, he could not earn a commission. It should be noted that even if the broker submitted a proposal, he could not earn a commission unless the developer accepted it.

A reasonable interpretation of the broker contract as contemplated by the parties would be that the developer expected performance by the broker within a 45-day period. If that performance was later accepted, the broker earned a commission. Any negotiations by the developer with outside parties would be subject to that exclusive right of the broker. In this instance, the broker did not perform during his exclusive 45-day period. I recognize that the broker’s right to perform during that 45-day period could not be interfered with, and the developer would be obligated to pay the broker a commission if the developer received a proposal from the the broker and thereafter accepted it.

It should be noted that the broker contract gave the developer the absolute right to deny the broker a commission by not accepting any proposal submitted by the broker. The majority would rewrite the contract to take this absolute right away from developer.

The broker contract provides at paragraph numbered “(2)” that: “if at the end of said forty-five (45) day period said commitment [procured by you] has not been received by us, then this agreement shall be null and void.” At paragraph “(4)” the parties provided: “If a permanent loan commitment is executed after the expiration of the 45 banking day period with any permanent lender with whom you have had correspondence on the subject property, all terms and conditions of this agreement shall survive and apply as stated herein.” (Emphasis added.)

Hence, the parties specifically provided for a commission to the broker after the 45-day period only for a lender supplied by the broker. The majority opinion enlarges on the plain meaning of the above quoted language to give the broker a commission on a loan not procured by the broker, contrary to the express language of the contract.

For the reasons stated, I would affirm the judgment of the trial court.