PECK, ET AL
v.
RICE
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Peck appeals from a directed verdict dismissing a real estate broker commission dispute. The trial court ruled there was no binding contract because the buyer's request for repairs constituted a counter-offer rather than acceptance. The appellate court reversed, finding the evidence supported a contract formation and requiring a full trial.
The court held that the directed verdict was premature and reversed the judgment, finding that the evidence presented through the plaintiffs' opening statement and the pleadings supported triable issues of fact regarding contract formation and the broker's entitlement to commission.
“This is an appeal from a judgment of the civil court of record in favor of the defendant below, based on direction of a verdict for defendant following plaintiffs' opening statement.”
Establishes the procedural posture and that the directed verdict was entered against plaintiffs after their opening statement.
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Join FLexlaw to unlock all legal intelligencePlaintiffs were real estate brokers who claimed they procured a buyer for the defendant's property. The buyer initially requested certain repairs be i…
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This is an appeal from a judgment of the civil court of record in favor of the defendant below, based on direction of a verdict for defendant following plaintiffs’ opening statement.
The cause was on trial before the court without a jury. Appellants make two main contentions. One is that the lower court had settled the question of the sufficiency of the complaint to set out a cause of action by making an order denying motion for summary judgment and reciting that there were triable issues. That was supplemented by the contention that the opening statement of plaintiffs’ counsel included facts on the basis of which the court had held that there were triable issues.
As a second main point, the appellants contend that the opening statement was full and complete, covered all the allegations and was sufficient.
In directing a verdict and dismissing the case, the trial court proceeded on the assumption or theory that there was no meeting of the minds — no contract between seller and buyer, or that no buyer was obtained, “ready, able and willing to buy,” because the buyer’s request on Monday for inclusion of a provision for certain repairs was considered a counter offer and, therefore, not an acceptance or showing on the part of the purchaser of being ready, able and willing to buy within the prescribed terms.
I feel that that is too fine an interpretation upon which to determine the case at that stage and without all of the evidence being in, particularly where substantially the same matter shown on the pleadings had been considered sufficient for trial.
Moreover, this court is inclined to differ with the interpretation placed by the court below on the final stages of the dealings. By the opening statement the plaintiffs proposed to prove that at the end of the week they informed the seller that the purchaser was inclined to demand certain repairs, and that the broker then agreed with the seller to absorb that item or difference (out of the commission), and, therefore, when the purchaser on Monday was ready, able and willing to go ahead, provided such repairs were included, there was, in fact, an acceptance in accordance with the terms for the sale.
Accordingly, the judgment is reversed and the cause is remanded for trial.