#### LATTER & BLUM, INC. v. The GRAND LODGE OF LOUISIANA.

No. 8550.

Court of Appeal of Louisiana, Fourth Circuit.

March 14, 1978.

Dissenting Opinion April 24, 1978.

*1195Edward J. McCloskey, McCloskey, Den-nery, Page & Hennesy, New Orleans, for Latter & Blum, Inc., plaintiff-appellant.

Robert L. Kleinpeter, Baton Rouge, for The Grand Lodge of Louisiana, defendant-appellee.

Before LEMMON, GULOTTA, BOU-TALL, STOULIG and THOMAS C. WICKER, JJ.

BOUTALL, Judge.

Latter & Blum, Inc., a real estate broker, seeks recovery of a commission allegedly due under a listing agreement for a lease, contending that the owner breached that provision of the listing agreement stating: “Owner agrees to refer all prospects for the leasing of said property to Agent and Agent shall conduct all negotiations for the leasing of said property.”

Appellant’s sole contention is that Lonnie Blanchard, a Vice-President of International City Bank contacted the building manager of the Grand Lodge of Louisiana during the month of March, 1968, inquiring as to the availability of a lease, and that the building manager did not notify appellant of this contact before the listing expired on April 1, 1968. The trial judge found as one of the bases of his opinion that there was no contact during March, but that the contact took place in April, after the listing expired. Accordingly, he dismissed plaintiff’s suit.

We affirm for two reasons: First, there is ample evidence in the record to support the trial judge’s conclusion and there is no manifest error in this determination; second, under the factual situation in this case, even if the contact was made in March, there was no breach of contract.

The evidence in regard to the contact being made is primarily the testimony of Sheldon Hubbard, the owner’s building manager. He testified that the former building manager had a lengthy illness terminating in his death on February 2, 1968, leaving the records of his office in a confused state. Hubbard became the building manager in March, 1968 and admits that Blanchard contacted him inquiring about the premises. There is considerable confusion in his testimony as to whether he was contacted three times, two times, or only once by Blanchard and whether these contacts took place in March or in April. On direct examination his testimony would indicate two contacts before his inquiry into the existence of a listing agreement with appellant. His testimony on *direct*examination would indicate that the contact occurred in the first part of April and his inquiry showed that the listing agreement had already expired. In addition to his testimony there were offered some documentary evidence and testimony of other witnesses, some of the evidence favoring the appellant’s version and some the appel-lee’s version. Under these circumstances the trial judge is faced with an assessment of the credibility of the witnesses and the weight that should be assigned to the testimony of the witnesses and the relationship of the documents to that testimony. There is evidence presented which forms the basis of a reasonable conclusion in support of either proposition, and indeed, one could say that the evidence preponderates one way or another depending upon which testimony he chooses to believe. The trial judge gave detailed reasons for judgment and findings of fact. His judgment may not simply be supplanted by our opinion as to the weight and sufficiency of the evidence, but can only be overthrown when there is manifest error in his findings. This type of situation is the classic application of the rule that we should leave that judgment undisturbed absent manifest error. *Canter v. Koehring Company,*283 So.2d 716 (La.1973); *Cote v. Krauss Company, Inc.,*323 So.2d 867 (La.App. 4th Cir. 1975); *Herzog v. Badilla,*317 So.2d 213 (La.App. 4th Cir. 1975); *May v. Finest Foods, Inc.,*303 So.2d 192 (La.App. 4th Cir. 1970). This rule is even more compelling in a case such as this where plaintiff is required to prove his case by a preponderance of the evidence. The best interpretation of the evidence favoring plaintiff is that the evidence in this case would support one conclusion just as reasonable as another. If the testimony of the building mana*1196ger is disregarded entirely, there is no evidence in this case which would show a contact during March, and the controlling evidence would be the inter-office memorandum dated April 8, after the expiration of the agreement.

In addition to the issue stated above, there is another factor to be considered in a determination of this case. This is not the type of case wherein an owner and a prospective tenant have engaged in a conspiracy to deprive the listing agent of its commission or where the owner alone sought that result. The inquiry here is only one single encounter of several over a period of months, and it should be considered in its proper perspective. The prior tenant had notified the owner and the agent (this same agent had secured the prior lease and was receiving commissions under it) in September 1967 of its intention to vacate the premises on March 7, 1968. At that time there was discussion between owner and agent and a loose oral agreement ensued wherein the agent was to get a commission if it secured a new tenant. In October, 1967, some of the agent’s employees contacted International City Bank, which occupied adjacent premises, and discussed the availability of a lease. The testimony of these employees, who were designated as the individuals to handle this account, was that they followed up these initial contacts throughout November, December, January, February and into March with ICB. At the same time, the listing agent attempted to find other tenants and was unsuccessful during the remaining months of 1967, when it decided that if it was granted an exclusive listing contract, it would expend more effort. This resulted in the exclusive listing contract from January 1 to April 1, 1968. The salesmen testified that after this contract was entered into they worked even harder and continued to follow up on the ICB prospect. The record indicates that the owner gave -full cooperation to these salesmen in their efforts and there is not even a hint of interference in their negotiations. Indeed, the employment of this agent was born of personal friendship between some of the officers involved, and the long prior experience of cordial business relationship and mutual profit between the parties over a period of years. If the testimony offered by appellant is to be believed, that its salesmen continued to follow up its initial lead to ICB, it is difficult to see how a telephone inquiry as to availability of the premises to the new building manager, who was entirely unaware of the existence of the listing agreement, could be considered as a breach of contract.

Appellant was well aware that its contract expired on April 1st, and that there was no commission due it unless a lease was produced by that time. The contract contained no saving clause which would permit payment of commission if a prospect with whom it negotiated should later decide to enter a lease, and the owner had refused its request for an extension of the agreement. It is indeed difficult to perceive that a salesman who was interested in obtaining this rather handsome amount in commission, would not have checked towards the end of March with its prospect with whom it had been in negotiation since October. Coincident with this is the fact that these salesmen did not even testify that they had contacted the owner’s new building manager. Under these facts, we cannot conclude that the owner was in breach of contract for the alleged failure of the building manager to notify the agent that an inquiry from ICB was made in March.

The judgment appealed is affirmed.

*AFFIRMED.*

LEMMON and GULOTTA, JJ., dissented and assigned reasons.

LEMMON, Judge,

dissents and assigns reasons.

The majority opinion is incorrect because (1) there is no basis for disregarding defendant’s building manager’s express testimony that the purchaser contacted him in March, 1968 and that he did not refer the prospect to plaintiff, and (2) no other evidence contradicts this testimony, and indeed other evidence supports it.

*1197The listing agreement involved the lease of the ground floor of the Masonic Temple Building owned by defendant. In September, 1967 the tenant then occupying the ground floor notified defendant of its intention to vacate the premises on March 7, 1968. Defendant requested plaintiff, who had handled the previous lease, to attempt to secure another tenant and agreed to pay a commission, but did not then sign a listing.

Plaintiff’s salesman contacted International City Bank (ICB), who occupied a building which adjoined part of defendant’s building. When the bank president expressed an interest, the salesman on October 26, 1967 delivered a copy of the architect’s sketch of the existing floor plan. The salesman followed up in November and December, but was told no definite decision had been reached.

On January 1,1968 defendant’s Chairman of the House Committee executed the listing agreement at issue, granting plaintiff an exclusive listing for three months. Plaintiff prepared and distributed brochures, advertised in newspapers, and showed the building to several other prospective tenants. When the listing expired on April 1, 1968, plaintiff requested an extension, which was denied.

Defendant signed a lease with ICB on May 13, 1968. Plaintiff, upon learning of the lease, claimed a commission, and this litigation ensued.

Defendant admits that Lonnie Blanchard, an ICB representative, contacted its building manager and that the manager did not refer the client to plaintiff, but contends the initial contact was after the listing agreement had expired. An analysis of the evidence, however, does not bear out this contention.

Sheldon Hubbard became defendant’s building manager in the first week of March, 1968, after the former manager had died on February 2. He testified that Blanchard contacted him “shortly after that” (he answered affirmatively an inquiry as to whether this was in March); that he didn’t know plaintiff had a listing (although there was a 4 x 6-foot sign in the front window); that he told Blanchard he was new on the job and didn’t have any information about the amount of space, the rental price, or the owner’s willingness to make improvements; that Blanchard contacted him again several weeks later (stated by Hubbard to be in March) and still later saw him on the street, but he didn’t yet have any information; and that “considerably later” after the time he became building manager (estimated to be three weeks to one month later) he and the committee chairman became involved in negotiations with Blanchard and with John Sitton, an ICB official who had not been involved in prior discussions.

While Hubbard’s overall testimony was somewhat confused and perhaps influenced by leading questions, it is clear that he had been on the job for several weeks before Sitton became involved in the negotiations. That fact, supported by a memorandum from Sitton to ICB’s president, dated April 8, 1968, stating he and Blanchard had met with Hubbard that morning to outline the basic points of the lease agreement, strongly suggests Hubbard was correct in stating that one or more of the contacts occurred in March.

On the other hand, there was no evidence from which one could reasonably reach a contrary conclusion. The bank president remembered very little, except that his early interest was lessened by access problems which were later resolved. Neither Blanchard nor Sitton testified. The only other witness on the subject, defendant’s committee chairman, testified that he told Hubbard, when informed of Blanchard’s inquiry, to check to see if defendant’s listing had expired before negotiating further, that Hubbard could not find the listing in the office records which were disorganized because of his predecessor’s lengthy illness, and Hubbard finally called plaintiff and ascertained the listing had expired. Again, this testimony, based largely on information received from Hubbard, indicates a substantial period between ICB’s first contact with Hubbard and the commencement of serious *1198negotiations, which took place at least as early as April 8.

Furthermore, Hubbard’s lack of information, even as late as Blanchard’s third contact, also suggests he had not yet determined whether plaintiff’s listing had expired (which was done before specific negotiations began).

Since there was no evidence in the record to support a finding that ICB’s first contact with defendant occurred after the listing agreement expired, there was manifest error in the implicit finding by the trial court that no contact occurred during the existence of the listing agreement.

The majority’s alternative position. — that the failure to refer this particular prospect was a harmless breach of contract because plaintiff had already contacted ICB about leasing the property — ignores the element of timing in the negotiation of real estate contracts. Plaintiff knew the fact that ICB was interested in leasing the property in late 1967, but did not know the fact that ICB became interested anew in March, 1968. It was defendant’s apparently unintentional non-disclosure of the latter fact which breached the contract and deprived plaintiff of the opportunity of negotiating with a currently interested prospect during the term of the listing agreement. Because of this breach under these circumstances defendant should be liable for the amount of the commission. See *Doll v. Thornhill,*6 So.2d 793 (La.App.Orl.1942).

GULOTTA, Judge,

dissents.

I dissent for the reasons assigned by LEMMON, J.