{ "id": 1559003, "name": "Arnold E. SIMMONS, Plaintiff-Appellee, v. Floyd PLUMMER and W.E. Darden, Defendants-Appellants", "name_abbreviation": "Simmons v. Plummer", "decision_date": "1995-07-20", "docket_number": "No. 15813", "first_page": "481", "last_page": "485", "citations": [ { "type": "official", "cite": "120 N.M. 481" }, { "type": "parallel", "cite": "902 P.2d 1084" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "342 So.2d 1308", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9694756 ], "opinion_index": 0, "case_paths": [ "/so2d/342/1308-01" ] }, { "cite": "566 N.Y.S.2d 701", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1991, "opinion_index": 0 }, { "cite": "170 A.D.2d 874", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 1029562 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ad2d/170/0874-01" ] }, { "cite": "98 A.2d 486", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1953, "opinion_index": 0 }, { "cite": "174 Pa.Super. 19", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 719025 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/pa-super/174/0019-01" ] }, { "cite": "626 A.2d 1154", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "534 Pa. 635", "category": "reporters:state", "reporter": "Pa.", "year": 1993, "opinion_index": 0 }, { "cite": "422 Pa.Super. 319", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 923439 ], "weight": 7, "year": 1993, "pin_cites": [ { "page": "382" }, { "page": "377" }, { "page": "377-78" }, { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/pa-super/422/0319-01" ] }, { "cite": "99 Nev. 635", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 4851759 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "638" }, { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/nev/99/0635-01" ] }, { "cite": "101 Nev. 24", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 2409388 ], "weight": 12, "year": 1985, "pin_cites": [ { "page": "1295" }, { "page": "1295-96" }, { "page": "1295" }, { "page": "1296" } ], "opinion_index": 0, "case_paths": [ "/nev/101/0024-01" ] }, { "cite": "550 So.2d 74", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7524478 ], "weight": 2, "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/so2d/550/0074-01" ] }, { "cite": "787 P.2d 203", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10381957 ], "weight": 3, "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/p2d/787/0203-01" ] }, { "cite": "542 N.E.2d 309", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "311" } ], "opinion_index": 0 }, { "cite": "27 Mass.App. 1185", "category": "reporters:state", "reporter": "Mass. App. Ct.", "case_ids": [ 3999083 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/mass-app-ct/27/1185-01" ] }, { "cite": "594 N.E.2d 890", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "893" }, { "page": "893" } ], "opinion_index": 0 }, { "cite": "32 Mass.App. 736", "category": "reporters:state", "reporter": "Mass. App. Ct.", "case_ids": [ 4007046 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/mass-app-ct/32/0736-01" ] }, { "cite": "46 N.M. 454", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563061 ], "weight": 2, "year": 1942, "pin_cites": [ { "page": "457", "parenthetical": "emphasis added" }, { "page": "269", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nm/46/0454-01" ] }, { "cite": "50 N.M. 121", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577079 ], "weight": 2, "year": 1946, "pin_cites": [ { "page": "125-26" }, { "page": "649" } ], "opinion_index": 0, "case_paths": [ "/nm/50/0121-01" ] }, { "cite": "64 N.M. 149", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5345351 ], "weight": 3, "year": 1958, "pin_cites": [ { "page": "153" }, { "page": "925" } ], "opinion_index": 0, "case_paths": [ "/nm/64/0149-01" ] }, { "cite": "60 N.M. 216", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590375 ], "weight": 4, "year": 1955, "pin_cites": [ { "page": "225" }, { "page": "687" }, { "page": "225" }, { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/nm/60/0216-01" ] } ], "analysis": { "cardinality": 776, "char_count": 17479, "ocr_confidence": 0.694, "pagerank": { "raw": 4.666970501906556e-08, "percentile": 0.29243519602880325 }, "sha256": "4ca2cfd5406018230941428d05583732462239ed813b24cddfab6f29ce85a350", "simhash": "1:3af66f0acbca7fe6", "word_count": 2905 }, "last_updated": "2023-07-14T17:50:53.788074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ALARID and BLACK, JJ., concur." ], "parties": [ "Arnold E. SIMMONS, Plaintiff-Appellee, v. Floyd PLUMMER and W.E. Darden, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nHARTZ, Judge.\nDefendants promised to pay Plaintiff a commission if he found a buyer for their interest in a race horse. Plaintiff found a prospective buyer, who entered into a purchase agreement with Defendants. The sale was subject to the condition that a third party not exercise his right of first refusal to acquire Defendants\u2019 interest. When the third party exercised his right, Defendants refused to pay Plaintiff a commission. Plaintiff sued and prevailed. Defendants appeal. We affirm.\nI. BACKGROUND\nThe following version of events is based on unchallenged findings by the district court and uncontroverted evidence at trial. Defendants each owned a 25% interest in Ro\u00f1as Ryon, an eight-year-old quarter , horse who was standing at stud after winning two of the three legs of the quarter horse triple crown (the Kansas Futurity and the All-American Futurity) as a two-year old. The other 50% interest was owned by Ben Benham. Defendants\u2019 combined interest in Ro\u00f1as Ryon included the power of management and control. Benham had a right of first refusal to match the sales price if either Defendant agreed to sell his interest in the horse.\nPlaintiff had been the trainer of Ro\u00f1as Ryon since 1986. In April 1992 Defendant Darden told Plaintiff that he wished to sell his ownership share in the horse and that he would pay a 5% commission if Plaintiff found a buyer. Plaintiff had previously brokered the sale of two horses owned by Defendants. Plaintiff approached Venture Farms, Inc., but it wanted at least a one-half interest in the horse and the power of management and control. Consequently, Plaintiff contacted Defendant Plummer, who consulted with Darden and then agreed to sell his 25% interest in Ro\u00f1as Ryon and pay a 5% commission if Plaintiff found a buyer. Plaintiff was aware of Benham\u2019s right of first refusal.\nPlaintiff negotiated with Venture Farms an offer that was presented to Defendants. After changing a few provisions in the offer relating to breeding rights, Defendants entered into a purchase agreement with Venture Farms to sell their interest in Ro\u00f1as Ryon for $500,000. Paragraph 2 of the agreement, executed on May 2, 1992, stated:\nThe purchase price set forth above shall be payable as follows:\n(A) $50,000 shall be paid within 10 days from Sellers obtaining the consent of Ben Benham as to this agreement and Ben Benham electing not to exercise his option to purchase the Sellers[\u2019] 50% interest in \u201cRo\u00f1as Ryon\u201d. Said consent shall be within 15 days from the date of this agreement.\n(B) After such consent has been recieved [sic] by Sellers from Ben Benham, the Buyer shall have a ten day period in which to examine all records and the breeding ability of the quarter horse \u201cRo\u00f1as Ryon\u201d, after such examination if the breeding records and the breeding ability is acceptable to Buyer the above mentioned $50,000 shall be paid to Sellers as a deposit on \u201cRo\u00f1as Ryon\u201d. Said deposit shall be non-refundale [sic] to Buyer except in the ease of death or an injury which affects the breeding ability of \u201cRo\u00f1as Ryon\u201d. Said $50,000 shall apply to the purchase price.\n(C)The balance of the purchase price in the amount of $450,000 shall be paid in cash to Sellers at the end of the 1992 breeding season when Buyer takes delivery of \u201cRo\u00f1as Ryon\u201d. In no event shall the delivery date be later than June 30, 1992.\nAt the end of the document appeared the following:\nCONSENT OF BEN BENHAM\nAs a 50% owner of the quarter horse \u201cRo\u00f1as Ryon\u201d I hereby elect not to exercise my option to purchase the interest of the \u201cSELLERS\u201d above and also agree that the 50% interest being purchased by the \u201cBUYER\u201d named above shall have full control and management of the quarter horse \u201cRo\u00f1as Ryon\u201d.\nExecuted on _ 1992 at _,\nBen Benham\nThe agreement made no mention of a commission for Plaintiff.\nThe sale to Venture Farms was not consummated, however, because Benham exercised his right of first refusal and purchased Defendants\u2019 interest in Ro\u00f1as Ryon at the same price and on the same terms provided in the agreement between Defendants and Venture Farm. Defendants then refused to pay any commission to Plaintiff.\nII. DISCUSSION\nDefendants contend that Plaintiff was not entitled to his commission because: (1) the offer by Venture Farms was conditional, so Venture Farms was not a \u201cready, willing, and able\u201d buyer; (2) Plaintiff was not the procuring cause of the sale of Ro\u00f1as Ryon; and (3) as a matter of law, no commission is owed upon the exercise of a right of first refusal unless the brokerage contract specifically provides for a commission in that instance. We are not persuaded.\nA.Conditional Offer\nDefendants recognize that under New Mexico law, \u201c[A] broker has earned his agreed commission when he produces a prospect who is ready, willing and able to purchase on terms agreeable to the seller.\u201d Stewart v. Brock, 60 N.M. 216, 225, 290 P.2d 682, 687 (1955). They rely, however, on the proposition that when a broker \u201cproduee[s] a purchaser who [is] only conditionally ready, willing and able to buy, and the condition never [is] removedf,] there [is] no purchaser ready, willing and able to buy entitling the agent to his commission.\u201d Sanders v. Freeland, 64 N.M. 149, 153, 325 P.2d 923, 925 (1958). Defendants\u2019 contention that Venture Farms\u2019 offer was conditional is based on the language of the purchase agreement providing that Benham must waive his right of first refusal and consent to the agreement. Because neither condition was fulfilled, they argue, no commission was due Plaintiff.\nWe disagree. Although those conditions needed to be fulfilled for the sale to Venture Farms to be consummated, they were not conditions that Venture Farms imposed on the sale. This was not a case, for example, in which the buyer would agree to buy only if the buyer could obtain the money to make the purchase, see id., or only if the seller could obtain rezoning of the property. Here, Defendants have not pointed to any limitation on Venture Farms\u2019 willingness to pay $500,000 to acquire Defendants\u2019 interest in Ro\u00f1as Ryon. An offer to purchase is not conditional within the meaning of Sanders if the offer is, in essence, \u201cI will buy if you will sell.\u201d Venture Farms was unconditionally \u201cready, willing and able to purchase on terms agreeable to [Defendants].\u201d Stewart, 60 N.M. at 225, 290 P.2d at 687. Hence, we reject (1) Defendants\u2019 challenge to the district court\u2019s finding that \u201c[a]t all times relevant to this case Venture Farms, Inc. was a ready, willing and able buyer for the purchase and sale of Ro\u00f1as Ryon\u201d and (2) their challenge to the conclusion of law that \u201c[Plaintiff] ... procured Venture Farms, Inc. as a ready, willing and able buyer for [Defendants\u2019] 50% ownership interest in the [sic] Ro\u00f1as Ryon for the sum of $500,000.00.\u201d\nB. Procuring Cause\nDefendants contend that Plaintiff was not the procuring cause of the sale of Ro\u00f1as Ryon because he did not procure Benham as the buyer. Plaintiff responds that in substance he did procure the sale to Benham. We need not resolve this dispute. Plaintiff is entitled to his commission even if he did not procure the actual buyer if he in fact procured someone ready, willing, and able to purchase on the sellers\u2019 terms. As stated in Wilson v. Sewell, 50 N.M. 121, 125-26, 171 P.2d 647, 649 (1946):\n\u201cThis case presents no circumstances which would vary the general and quite universal rule that the broker has earned, and is entitled to, his commission, under the character of agreement here relied upon, when he has procured a purchaser who either consummates the purchase, or who is ready, able and willing to do so upon the terms given to the agent by the owner.\u201d (quoting Williams v. Engler, 46 N.M. 454, 457, 131 P.2d 267, 269 (1942) (emphasis added).\nHaving affirmed the district court\u2019s ruling that Plaintiff procured a ready, willing, and able buyer for Ro\u00f1as Ryon, we need not investigate whether Plaintiff procured the actual buyer, Benham.\nC. Right of First Refusal\nDefendants next suggest that the commission is not due in this case because of a legal doctrine that specifically addresses rights of first refusal. According to Defendants, a commission is not owed when property is sold to a person holding the right of .first refusal unless the brokerage contract specifically provides for payment in that circumstance. They contend that any ambiguity regarding whether a commission is due should be construed against the broker.\nWe reject Defendants\u2019 position. We see no reason to carve out their proposed exception from the general rule that the broker earns the commission by procuring a buyer ready, willing, and able to purchase the property on the seller\u2019s terms. Even when the sale to such a buyer is prevented by a third party\u2019s exercise of a right of first refusal, the combination of two factors argues strongly for awarding the commission. First, the broker has done all that can be done to earn the commission. Second, the seller is guaranteed to achieve the result for which the broker was hired \u2014 a sale (to either the broker\u2019s prospect or the person holding the right of first refusal) at the asking price. Thus, when the owner of property promises to pay a broker a commission for finding a buyer, the promise should be interpreted to encompass paying the commission even if a right of first refusal is exercised. Such an interpretation is the appropriate default rule \u2014 that is, the rule to be applied when the contract does not expressly address the matter \u2014 because it compensates the broker for accomplishing the assigned task yet does not impose an unfair burden on the owner, who was willing to net the same amount of money, on the same terms, if the right of first refusal had not been exercised. Because payment of the commission is reasonable and equitable when the right of first refusal is exercised, one could say that the right to the commission in that event is implicit in a contract to pay a commission for procuring a buyer.\nWe are not persuaded by Defendants\u2019 argument that the broker should bear the risk of ambiguity in the brokerage contract. They advance the contention that the broker is the party to the contract better able to protect its self-interest by including in the contract specific terms regarding what happens if the right of first refusal is exercised. They find support in statements by the Massachusetts courts. See Dalvis, Inc. v. Coz, 32 Mass.App. 736, 594 N.E.2d 890, 893 (1992); DePasquale v. App, 27 Mass.App. 1185, 542 N.E.2d 309, 311 (1989). Yet, whatever the merit of this contention in the settings considered by the Massachusetts courts, the contention lacks merits in this case. The Massachusetts cases involved professional real estate brokers. When one party to a contract has substantially greater sophistication than the other in the type of transaction governed by the contract, a court might properly require the sophisticated party to protect itself in the contract against likely contingencies. Thus, if the broker is a licensed professional, there is some force to Defendants\u2019 contention that the broker is the party better able to protect its self-interest. But we need not decide what the default rule should be when the broker is a licensed professional. Plaintiff was not in that category and nothing in the record suggests that Plaintiff possessed substantially more sophistication than Defendants in these matters.\nFinally, we address the six decisions cited by Defendants in which brokers were denied their commissions after the exercise of a right of first refusal. Although these decisions may contain some language supporting Defendants\u2019 argument, they are distinguishable on their facts. In DePasquale the commission was denied because the prospective buyer procured by the broker had never signed a binding purchase agreement with the seller. The other opinions relied on specific contract language not present in our case. In Fallenius v. Walker, 787 P.2d 203 (Colo.Ct.App.1989), cert. denied (May 29, 1990), the open listing agreement stated, \u201cIn case of a sale made by any person other than the undersigned broker, this listing contract is void and of no effect,\u201d id. at 204, and the contract between the seller and the prospective buyer procured by the broker stated, \u201cUpon closing of this contract, seller agrees to pay to broker a commission of 10% of the purchase price for services in this transaction.\" Id. In Lehr v. Baron\u2019s of Surfside, Inc., 550 So.2d 74 (Fla.Dist.Ct.App.1989), the brokerage agreement \u201cspecifically provided, contrary to the ordinary rule ..., that no commission was due until and unless a sale to the broker\u2019s principal actually took place.\u201d Id. at 75. In Dalvis the brokerage arrangement \u201cunequivocally called for a commission only in the event of a sale to [the buyer procured by the broker] or a forfeiture of its deposits.\u201d 594 N.E.2d at 893.\nContract language also distinguishes Redfield v. Estate of Redfield, 101 Nev. 24, 692 P.2d 1294 (1985), although the facts are more complex. The prospective buyer \u201cnegotiated with the Estate regarding the use of a broker, a proposition that the Estate found acceptable so \u2018long as the broker\u2019s commission was effectively picked up by [the prospective buyer].\u2019 \u201d Id. 692 P.2d at 1295. The prospective buyer submitted through the broker a purchase offer for the price demanded by the Estate plus a commission for the broker. Id. The offer contained the following provision: \u201cThe Estate ... agrees to pay [the broker] a brokerage commission of 10% of the purchase price if this offer be accepted and finally approved by the Court following probate bid-up procedures, or 50% of said commission ... should another offer be finally approved by the Court following said bid-up procedures.\u201d Id. 692 P.2d at 1295-96. The offer was expressly subject to the right of first refusal of a third party. Id. 692 P.2d at 1295. That party exercised its right, which was not subject to probate bid-up procedures. Id. 692 P.2d at 1296. The court wrote that \u201c\u2018the terms of the agreement govern the broker\u2019s right to compensation.\u2019 \u201d, id. (quoting Caldwell v. Consolidated Realty & Management Co., 99 Nev. 635, 638, 668 P.2d 284, 286 (1983)), and noted that the agreement \u201cby its own terms, did not obligate the Estate, or, consequently, [the party that exercised the right of first refusal,] to pay a broker\u2019s commission under the circumstances we have discussed.\u201d Id. The case before us does not include similar contract language, nor does it involve a broker retained by the buyer rather than the seller.\nOf particular interest is the sixth decision cited by Defendant. In Coldwell Banker Phyllis Rubin Real Estate v. Romano, 422 Pa.Super. 319, 619 A.2d 376, 382, appeal denied, 534 Pa. 635, 626 A.2d 1154 (1993), the brokerage agreement provided for a commission regardless of who effected the sale, even the owner. A handwritten insertion, however, stated \u201cAdjacent property has first right of refusal.\u201d Id. 619 A.2d at 377. The owner and the broker\u2019s agent in charge of the property testified that the insertion meant that no commission was due if the right of first refusal was exercised. Other representatives of the broker disagreed, but the trial court construed the contract in favor of the owner. Id. 619 A.2d at 377-78. The appellate court affirmed the ruling denying a commission on a sale to the holder of the right of first refusal. But the court did not rest its decision on a general rule against awarding a commission when a right of first refusal is exercised. On the contrary, the court reaffirmed the decision in Real Estate Co. v. Cavazza, 174 Pa.Super. 19, 98 A.2d 486 (1953), which\nheld that a broker earned a commission where it introduced a buyer to a listed property, the buyer was \u201cready, willing and able\u201d to purchase the property at a price acceptable to the owner, but the property actually was sold to its tenant who held a right of first refusal.\nId. 619 A.2d at 380. The court distinguished Cavazza on the ground that the trial court in that case had resolved in favor of the broker a factual dispute regarding whether the broker had agreed that there would be no commission in the event the tenant exercised his right. Id.\n\u25a0 Rather than following the results in the decisions cited by Defendants, in which the facts are distinguishable from those present here, we follow those decisions awarding a brokerage commission for procuring a ready, willing, and able buyer despite the sale to the holder of a right of first refusal. See Cavazza; Beaudry v. Plew, 170 A.D.2d 874, 566 N.Y.S.2d 701 (1991); cf. Magnolia Fed. Sav. & Loan Ass\u2019n v. Randal Craft Realty Co., 342 So.2d 1308 (Miss.1977) (relying on equitable remedies). The record in the present case supports the district court\u2019s judgment.\nCONCLUSION\nFor the above reasons, we affirm the judgment below.\nIT IS SO ORDERED.\nALARID and BLACK, JJ., concur.\n. Defendants do not rely on the conditions in the purchase agreement that Ro\u00f1as Ryon have acceptable breeding records and breeding ability. Presumably there is no dispute that those conditions would have been satisfied.", "type": "majority", "author": "HARTZ, Judge." } ], "attorneys": [ "Charles E. Hawthorne, Hawthorne & Hawthorne, P.A., Ruidoso, for plaintiff-appellee.", "Andrew J. Cloutier, Hinkle, Cox, Eaton, Coffield & Hensley, Roswell, for defendants-appellants." ], "corrections": "", "head_matter": "902 P.2d 1084\nArnold E. SIMMONS, Plaintiff-Appellee, v. Floyd PLUMMER and W.E. Darden, Defendants-Appellants.\nNo. 15813.\nCourt of Appeals of New Mexico.\nJuly 20, 1995.\nCertiorari Denied Sept. 1, 1995.\nCharles E. Hawthorne, Hawthorne & Hawthorne, P.A., Ruidoso, for plaintiff-appellee.\nAndrew J. Cloutier, Hinkle, Cox, Eaton, Coffield & Hensley, Roswell, for defendants-appellants." }, "file_name": "0481-01", "first_page_order": 519, "last_page_order": 523 }