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Rose v. Minis

Decided: September 28, 1956.

ROBERT J. ROSE AND LLOYD V. S. CONOVER, PLAINTIFFS-APPELLANTS,
v.
H. PHILIP MINIS AND DOROTHEA H. MINIS, AND MAX ZAITZ AND DAVID ZAITZ, PARTNERS, T/A B. ZAITZ & SONS, DEFENDANTS-RESPONDENTS



Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.

Francis

Plaintiff Robert J. Rose sought specific performance of an alleged agreement for the purchase of certain property owned by the defendants, H. Philip Minis and Dorothea Minis, his wife. Lloyd V. S. Conover joined in the action as plaintiff, asserting that he was the broker who produced Rose as the buyer; he demanded judgment for commissions on the sale.

The Minises counterclaimed for damages against Conover, claiming that he was guilty of a breach of the fiduciary relation which existed between them in connection with the alleged sale to Rose.

Max Zaitz and David Zaitz, trading as B. Zaitz & Sons, were allowed to intervene as defendants. They filed an answer setting forth that they had acquired a valid agreement to buy the property in question which they were entitled to enforce.

After full hearing, the trial court decided adversely to both plaintiffs' claims. He concluded further that the Zaitzs held a binding purchase agreement and ordered the Minises to convey to them. The counterclaim against Conover for breach of the trust relationship was dismissed as not supported by the proof. Both plaintiffs have brought the matter to us for review. Defendants Minis also appeal from the rejection of the counterclaim.

The determination adverse to the plaintiff was based upon a number of grounds by the trial court. On this appeal, in our judgment, it is necessary to consider only one of them, namely, the defense of the Minises that Conover's authority to act as broker had been revoked before the alleged sale to Rose.

Prior to the events which gave rise to this litigation the Minis owned property had been on the market for sale for some time. Conover, a real estate broker, had interested

himself in bringing about its disposition. The owners had ample written notice of this.

Around the middle of December 1954 he made contact with the plaintiff Rose as a prospective purchaser. After some preliminary negotiations with Rose, Conover prepared a written instrument for execution by Mr. and Mrs. Minis. In doing so, he had the advice and assistance of an attorney. The paper was presented to them and after some conversation was had indicating the existence of a possible buyer, they signed it. A few changes and terms were written in by Mr. Minis.

It was in letter form, addressed to Conover, dated December 31, 1954, and provided as follows:

"In reply to your statement, about your party interested to buy our farm. We herewith agree to sell the farm (reserving the new house with boundaries as we set them up today, with right of way on existing roads), the new house plot to comprise no more than 300 x 700 ft. And agree to sell the balance of the farm, approximately 204 acres with the buildings thereon for $60,000., on terms ten percent paid now, and thirty (30) percent paid in six months on passing title, with balance of the purchase price on five year purchase money mortgage, with prepayment clause. Interest on said mortgage to be at the rate of five (5) percent per annum, interest to be payable semi-annually.

And we herewith give you ten (10) days option from the date hereof to make the sale; and we agree that anytime within the option period that the ten percent deposit is paid us we will sign an agreement to sell as above, and on passing title to deliver a good marketable title by warranty deed. Taxes and insurance to be adjusted as of date of passing title. And we further agree if the sale is made to your client, that at the time of ...


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