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Kellogg v. Bowen

Supreme Court of Arizona

April 8, 1959

J. M. KELLOGG and John Miller Williams, Appellants,
James BOWEN and Phoenix Title & Trust Company, a corporation, Appellees.

Rehearing Denied June 9, 1959.

[85 Ariz. 305] Herbert Mallamo, Phoenix, for appellants.

Raymond R. Wein and Irwin Cantor, Phoenix, for appellees.

[85 Ariz. 306] JOHNSON, Justice.

This is an appeal by plaintiffs-appellants, J. M. Kellogg, a real estate broker, and John M. Williams, his salesman, from an adverse judgment entered by the trial court, sitting without a jury. The action was instituted to recover one-half of certain commissions paid to the defendant, James Bowen. The action was against James Bowen, a real estate broker, hereinafter called defendant, Dean Stanley and his wife, Frances H. Stanley, and Tyson Carter and his wife, Seraphine Carter. However, during the course of the trial plaintiff

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dismissed his complaint against the Carters and the Stanleys, and this appeal is only from the judgment entered in favor of the defendant, James Bowen.

The facts are that defendant, James Bowen, had listings on 60 acres of industrial property which was owned by Tyson Carter. These listings were dated January 20, 1954, which expired February 6, 1954; and another dated May 19, 1954, which expired on June 1, 1954.

J. M. Kellogg, through his salesman, Williams, hereinafter called plaintiff, had listings on two parcels of property belonging to Dean Stanley. These listings were for 30 days and were dated January 14, 1954; the listing for 360 acres expired on February 14, 1954, and for 160 acres expired on February 16, 1954, and were not thereafter renewed.

Plaintiff advertised Stanley's two parcels in a blind ad in the newspaper, and Carter answered and expressed interest in trading his industrial property for ranch land. On January 17, 1954, plaintiff showed Stanley's listed property and an adjoining 240-acre parcel also owned by Stanley, to Carter. Carter informed plaintiff that his industrial property was listed with defendant; however, a written exclusive listing was not given the defendant until January 20, 1954. Plaintiff, upon learning that defendant had an exclusive listing on Carter's industrial property, contacted defendant and he orally agreed to cooperate with plaintiff in effecting a sale or trade of the Stanley and Carter properties, and to split the commission fifty-fifty. However, the evidence is in dispute whether the exact parcels of Stanley's properties were mentioned. Plaintiff did not inform defendant that Stanley would not consider any trade or sale with Carter unless the industrial property could be sold immediately and as part of the same transaction.

On or about February 10, 1954, plaintiff, defendant and Carter met in defendant's office and a discussion was had primarily between Carter and plaintiff as to the value to be placed on the Carter industrial property. The defendant's exclusive listing on the Carter property had expired and plaintiff insisted that Carter sign a new listing. Carter refused, and because of the attitude and conduct of plaintiff became displeased [85 Ariz. 307] with him, left the meeting, and later informed defendant that he would have nothing more to do with plaintiff and did not want him in on any deal to be made in the future. This was the last time Carter saw the plaintiff. Stanley was not present during this meeting and the negotiations did not progress to the point where any sale or trade was discussed with him.

From February, 1954 to May, 1954, nothing further was done concerning any proposed transaction, and as testified by the defendant 'There was not even the thought of a deal. If there had been, I would have gone back and gotten another listing, which the evidence shows I did. Each time I had a prospect, I got a listing.'

After February, 1954, Carter attempted to sell or trade his own property but without success, and finally in May, 1954, again listed it with the defendant, explaining he wanted to make a trade rather than a sale because there would be a tax advantage. Carter gave the defendant the names of three prospects, including Stanley, who owned farm land and might be interested. Defendant contacted Stanley who expressed some interest in a purchase and trade, but would only trade if there was an immediate sale of the 60 acres of industrial property which he would receive in the trade.

From this time until the closing of the deal in December there were innumerable proposals and counterproposals between defendant, Stanley, Carter and Andrew Tell. The sale and trade that was finally agreed upon did not involve the same properties which had been originally discussed between defendant, Carter and plaintiff.

The final transaction which was closed in January, 1955, was as follows:

Stanley would sell to Carter the 360 acres, known as Ranch No. 11, for $88,740; Stanley ...

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