Stortroen v. Beneficial Finance Co. Of Colorado

736 P.2d 391 (1987)

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Nature of the Case

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Facts

Ps wished to sell their home and to purchase a larger residence. Ps sought the assistance of Mary Panio, a broker-associate with Foremost Realty, which had sold Ps their current home. Ps listed their home for sale with Foremost on November 4, 1983, and relied on Panio to show them a suitable property to buy. Panio consulted a compilation of listings published by Metrolist, Inc., a multiple listing service operated by several boards of realtors in the Denver metropolitan area. Panio learned through the listing book issued by Metrolist that D had listed for sale with Paul Olthoff, doing business as Olthoff Realty Company, a house at 6927 Quay Court in Arvada. The listing agreement between D and Olthoff was captioned 'Exclusive Right To Sell Listing Contract (Residential).' D had the exclusive and irrevocable right to sell the home within the said time at the price and on the terms herein stated, or at such other price and terms which may be accepted. D was authorized to list the property with any multiple listing service in which he is a participant, at the broker's expense, and to accept the assistance and cooperation of other brokers. It was agreed that D would get 6% of the selling price for his services. If Paul Olthoff, personally procured a purchaser for subject property then brokerage fee was to be 4% of purchase price. If D procures a purchaser for subject property then the brokerage fee was to be 2% of purchase price. Panio showed Ps the property and assisted them in preparing a written offer to purchase the property. The contract was contingent upon the sale and closing of Ps’ current home. D reviewed the offer with Olthoff and rejected it. A counterproposal offered the property for $110,000. D submitted the counterproposal through Olthoff to Panio on February 1, 1984. Carol Ann and Eugene Carelli were shown the Quay Court property by a licensed real estate salesperson employed by another broker. They prepared an offer of $112,000 for the property and submitted it to Paul Olthoff, the listing broker, on the afternoon of Friday, February 3, 1984. At approximately 4:30 p.m. on the afternoon of February 3, Olthoff left telephone messages at Panio's office and residence to the effect that D had withdrawn the counteroffer. After Olthoff informed Reh that he had left these messages, Reh accepted the Carelli offer in writing. Panio took D's counteroffer to Ps at their home where Ps signed their acceptance at approximately 4:10 p.m. Panio then brought the signed copy back to her office and discovered the withdrawal message from Olthoff. When the facts were discovered Ps recorded the contract and its modifications with the Jefferson County Clerk and Recorder. The Carelli's refused to close the transaction when the title examination revealed a cloud on the title caused by Ps' recordation, and they moved into the property under a month-to-month lease. Ps sued D and the Carelli's, alleging breach of a real estate sales contract and seeking a specific performance decree. The district court concluded that Panio was the agent of Ps and that Ps' delivery of the written acceptance of D's counterproposal to Panio did not constitute notice of acceptance to D. The court granted the motion for summary judgment on behalf of D. Ps appealed.