{ "id": 5332662, "name": "Ray WHITE, Plaintiff-Appellee, v. Paul RAGLE, Defendant-Appellant", "name_abbreviation": "White v. Ragle", "decision_date": "1971-05-21", "docket_number": "No. 562", "first_page": "644", "last_page": "648", "citations": [ { "type": "official", "cite": "82 N.M. 644" }, { "type": "parallel", "cite": "485 P.2d 978" } ], "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": "78 N.M. 642", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326842 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/78/0642-01" ] }, { "cite": "41 N.M. 330", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571502 ], "weight": 2, "year": 1937, "opinion_index": 0, "case_paths": [ "/nm/41/0330-01" ] }, { "cite": "193 N.W. 970", "category": "reporters:state_regional", "reporter": "N.W.", "weight": 2, "year": 1923, "opinion_index": 0 }, { "cite": "181 Wis. 68", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8685995 ], "weight": 2, "year": 1923, "opinion_index": 0, "case_paths": [ "/wis/181/0068-01" ] }, { "cite": "31 Tenn.App. 490", "category": "reporters:state", "reporter": "Tenn. App.", "case_ids": [ 8511180 ], "weight": 2, "year": 1946, "opinion_index": 0, "case_paths": [ "/tenn-app/31/0490-01" ] }, { "cite": "78 N.M. 440", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5323510 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0440-01" ] } ], "analysis": { "cardinality": 528, "char_count": 11443, "ocr_confidence": 0.69, "pagerank": { "raw": 7.30382687038975e-08, "percentile": 0.4342235782858383 }, "sha256": "956b7b9805295447bf2c066883a5878e4c5646f6084fffa57a3fd02e92bbb4c8", "simhash": "1:105aa70ea9449bb0", "word_count": 1929 }, "last_updated": "2023-07-14T17:16:32.756560+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SPIESS, C. J., and WOOD, J., concur." ], "parties": [ "Ray WHITE, Plaintiff-Appellee, v. Paul RAGLE, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nThis is a suit for a real estate broker\u2019s commission based upon an exclusive listing contract which was subsequently revoked. White recovered a judgment, and Ragle appeals.\nWe affirm.\nRagle\u2019s appeal is based upon alleged error in the trial court\u2019s findings of fact and conclusions of law.\nRagle makes the following claims of error on appeal, (1) that White\u2019s exclusive listing contract was not coupled with an interest, was not partially performed and was revocable at will; (2) that White was not the procuring cause of the sale; and (3) that there was an accord and satisfaction between the parties.\nThe trial court found that on March 3, 1965, White, Ragle and McCauley entered into a written contract whereby Ragle and McCauley employed White as a real estate broker under an exclusive agency with the exclusive right to sell real estate in Grant County. White was to receive a commission on the total selling price on the sale or exchange of any or all of the property during a five-year term from March 3, 1965.\nThe trial court also found that from March 3, 1965, until July 12, 1967, plaintiff exerted extensive efforts toward the sale, and expended many hours and spent substantial money toward the promotion and sale of the property which included, (1) an exchange of a portion of the property with the Town of Silver City, which portion had a substantial value without clear and convincing evidence of its unimproved value; (2) contacting many persons, and (3) being contacted by Hay who had seen White\u2019s \u201cFor Sale\u201d sign on the property. White authorized Hay to deal directly with Ragle for the purchase of property, provided White was protected in his commission. Hay purchased the property from Ragle and was the owner at the time of trial, March 9, 1970. White was the procuring cause of the exchange and the sale.\nOn July 12, 1967, Ragle wrongfully and without provocation undertook to cancel White\u2019s written contract, and directed a letter of cancellation to White. This was a breach of the contract because the five-year listing period had not ended.\nLate in December, 1968, and early 1969, Ragle paid White a total sum of $300.00. This did not constitute an accord because there was no meeting of the minds as to the amount to be paid, or the terms of payment. There was no tender of the balance of moneys claimed to be due under the alleged Record, by Ragle to White, in the sum of $2200.00. Although these findings .were challenged by Ragle, we believe they have substantial support in the evidence.\nThe trial court concluded that White was entitled , to recover upon one or more of the following theories (alternately or collectively) :\nA. White was the procuring cause for the exchange of lands between Ragle and the Town of Silver City which was substantial partial performance under the White-Ragle contract;\nB. White was the procuring cause for the sale of the entire tract of land to Hay;\nC. White\u2019s exclusive listing contract was coupled with an interest in the real estate (the exchange of property procured by White and White\u2019s efforts in obtaining zoning changes for Ragle\u2019s land) ;\n' D. White\u2019s contract was an exclusive agency with exclusive right of sale. White had partially performed pursuant to the contract or offer before attempted cancellation or' revocation by Ragle; the contract became irrevocable during the time stated, March 3, 1965, through March 2, 1970, and binding on Ragle according to its terms.\nWas'the Exclusive Listing Contract Subject to Revocation at Will?\nRagle contends that the trial court\u2019s finding that the contract was irrevocable becajise it was coupled with an interest and that White had partially performed was totally unsupported by the law and the evidence. The contract provided:\n\u201cEXCLUSIVE AGENCY WITH EXCLUSIVE RIGHT. Broker is hereby appointed Owner\u2019s exclusive agent, and Broker is hereby granted the exclusive right to sell the said property at the price and on the terms herein stated, or at such other price as may be accepted by Owner. In case of any sale or exchange of property to any party during the said period by any party, including Owner, Owner shall pay Broker 4}4% commission of the total selling or exchange price plus sales tax.\u201d\nThe above provision creates both an exclusive agency and, an exclusive right in White to sell. This is a broad grant of authority.\nMarchiondo v. Scheck, 78 N.M. 440, 432 P.2d 405 (1967), was not an exclusive listing contract case. However, two authorities were cited which provide that such contracts may be revoked at will until there is action by the broker, such as partial performance, pursuant to the offer made by the contract. Hutchinson v. Dobson-Brainbridge Realty Co., 31 Tenn.App. 490, 217 S.W.2d 6 (1946); Levander v. Johnson, 181 Wis. 68, 193 N.W. 970 (1923).\nIt is interesting to note that Marchiondo is now cited in favor of the rule that \u201ca broker\u2019s agency is not rendered irrevocable by the fact that his power to sell is m'ade exclusive.\u201d 12 C.J.S. Brokers \u00a7' 16(b), note 44, Supp. The Marchiondo court said:\n\u201cUntil there is action by the offeree \u2014 a partial performance pursuant to the offer \u2014 the offeror may revoke even if his offer is of an exclusive agency or an exclusive right to sell. Levander v. Johnson, 181 Wis. 68, 193 N.W. 970 (1923).\u201d [Emphasis added].\nIn the present case, White had an exclusive agency and an exclusive right to sell. To determine revocability at will, the only issue to decide is whether there was partial performance by White. If so, the power to revoke died and White earned his commission.\nWas the Contract Partially Performed?\nThe trial court concluded that White had partially performed pursuant to the contract or offer before the attempted cancellation or revocation by Ragle and, therefore, the contract became irrevocable.\nIn Marchiondo v. Scheck, supra, the court said:\n\u201cOnce partial performance is begun pursuant to the offer made, a contract results.\n* * * * * *\n\u201cThus, defendant\u2019s right to revoke his offer depends upon whether plaintiff had partially performed before he received defendant\u2019s revocation.\n\u2756 * * * * *\n\u201cWhat constitutes partial performance will vary from case to case since what can be done toward performance is limited by what is authorized to be done. Whether plaintiff partially performed is a question of fact to be determined by the trial court.\u201d\nThe trial court found that from March 3, 1965, the date of the contract, to July 12, 1967, the date of revocation, White exerted extensive efforts toward the sale of the property and expended many hours and spent substantial money toward promotion and sale of the property; that after March 3, 1965, pursuant to the terms of the contract, plaintiff negotiated an exchange of a portion of the property with the Town of Silver City which had substantial value; that plaintiff contacted many persons toward the sale, including adjacent landowners, prospects for the erection of a motel, shopping center, and other commercial pursuits.\nWe have reviewed the record and find substantial evidence to support the trial court\u2019s findings and conclusions that White. had partially performed before the date of revocation. The revocation was ineffective. Ragle later sold to Hay all of the property, including that received in the exchange for a very substantial sum.\nExclusive agency with exclusive right 'provision, supra, is clear and unambiguous. The exclusive agency provision precludes Ragle from employing another broker. The exclusive right to sell protects White\u2019s real estate commission upon any sale by Ragle or anyone else. 12 C.J. S. Brokers \u00a7 94; 12 Am.Jur.2d Brokers,'\u00a7 227, p.971.\nWhite is entitled to his -real estate commission.\nInasmuch as White partially performed and established a binding contract, it is unnecessary to consider Ragle\u2019s other claims, (1) that the exclusive listing was not coupled with an interest, and (2) . whether White was the procuring cause of the exchange or sale.\nWas there an Accord and Satisfaction'?\nRagle contends that there was an accord and satisfaction. The trial court found that late in 1968 and early in 1969, Ragle paid White a total sum of $300.00 that did not constitute an accord because there was no meeting of the minds as to the amount to be paid, nor a meeting of the minds as to the terms of payment; that there was no tender of the balance of moneys claimed to be due under the alleged accord by Ragle to White in the sum of $2200.00. The trial court concluded that no accord and satisfaction was ever consummated; that, even if an accord had been reached, it was an \u201caccord executory\u201d; there was no satisfaction of it, and Ragle materially breached the terms thereof.\nWhite testified that he could nev\u00e9r-get an agreement; that he attempted to work out a settlement but never had a meeting of the minds.\nRagle\u2019s contention is based primarily on correspondence. On May 24, 1968, Ragle offered to settle the commission problem for $2500.00, upon sale of the land and payment. On July 24, 1968, White agreed to accept the amount if it were paid immediately. On August 20, 1968, Ragle wrote that he would pay $2500.00 when he was paid some money on the land. He also offered to pay White $100 a month, beginning in September and the minute he got his \u201cbig money,\u201d he would pay off. White would not accept the offer because it had no termination date. If Ragle would fix a day certain to pay the full amount, it would be all right. On November 26, 1968, Ragle received a notice that White wanted to withdraw his offer to settle. On December 11, 1968, January 31, 1969, and February 1, 1969, Ragle sent White $100 checks which were cashed by White. On February 22, 1969, White cancelled negotiations for settlement because the full amount was not paid immediately.\nOn January 22, 1968, Hay, the purchaser, executed a real estate mortgage note for $153,000, $80,000 of which was to be paid to Ragle by January 10, 1969. On February 9, 1969, Ragle gave instructions to White\u2019s attorney that when the attorney was paid the money from the Texaco people, he was to put $2300 in the Ragle account at the Grant City Bank with the right of White to get it.\nWhite filed suit on April 30, 1969. On May 9, 1969, the Ragle-Hay real estate transaction was closed, the money paid, and it was credited in the bank on May 12, 1969.\nDid this Constitute an Accord and Satisfaction?\nThis defense was defined in Miller v. Prince Street Elevator Co., 41 N.M. 330, 68 P.2d 663 (1937), as follows:\n\u201cAn \u2018accord\u2019 is an agreement, an adjustment, a settlement of former difficulties, and presupposes a difference, a disagreement as to what is right. A \u2018satisfaction\u2019 is a performance of the terms of the accord; if such terms require a payment of a sum of money, then that such payment has been made.\u201d\nThe burden of proof was clearly upon Ragle. Baker v. Shufflebarger & Associates, Inc., 78 N.M. 642, 436 P.2d 502 (1968). This burden failed.\nEven if the oral and documentary evidence was sufficient to raise an issue of fact, substantial evidence sustains the trial court\u2019s findings and conclusions.\nThe judgment is affirmed.\nIt is so ordered.\nSPIESS, C. J., and WOOD, J., concur.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "J. W. Reynolds, Robertson & Reynolds, Silver City, for defendant-appellant.", "J. Wayne Woodbury, Silver City, for plaintiff-appellee." ], "corrections": "", "head_matter": "485 P.2d 978\nRay WHITE, Plaintiff-Appellee, v. Paul RAGLE, Defendant-Appellant.\nNo. 562.\nCourt of Appeals of New Mexico.\nMay 21, 1971.\nJ. W. Reynolds, Robertson & Reynolds, Silver City, for defendant-appellant.\nJ. Wayne Woodbury, Silver City, for plaintiff-appellee." }, "file_name": "0644-01", "first_page_order": 700, "last_page_order": 704 }