No. 80-195 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

PATRICIA BARRETT , 

Plaintiff and Respondent, 

VS . 

LORNA BALLARD, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Carbon. 

Honorable William J. Speare, Judge presiding. 

Counsel of Record: 

For Appellant: 

Bridger Law Office; Joseph E. Mudd, Bridger, Montana 

For Respondent: 

Stephen M. Barrett, Bozeman, Montana 

Submitted on briefs: November 26, 1980 

Decided : 

Filed: 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal from a judgment of the District Court 

to recover damages in the form of a commission from the sale 

of real estate. The matter was tried to a jury which returned a verdict for plaintiff in the amount of $4,200 plus 

interest and costs. From this judgment, defendant appeals. 

This matter began with a real estate contract, dated 

March 7, 1975, between respondent realtor and appellant 

seller. In that contract a written listing agreement was 

signed setting forth a listing period of six months. On 

September 7, 1975, respondent and appellant entered into 

another listing agreement for the same property. During the 

entire period of the listing, respondent advertised the 

property in the Billings Gazette and showed the property to 

several prospective buyers. 

Both the first and second listing agreements were 

signed only by Lorna Ballard and not by her husband, Virgil 

Ballard. On September 7, the time of the signing of the 

second listing, respondent showed appellant a list of all 

parties who might be interested in the property. 

On September 20, 1975, respondent advertised the land 

for sale erroneously as "under $6,000" instead of "$106,000." 

As a result of this advertisement, William Scilley of Billings, 

Montana, called respondent about the property. Scilley came 

from the area in which the land was located and stated that 

he was interested in purchasing it. Contrary to her usual 

procedure, respondent gave Scilley the location of the 

property and the name of owner over the phone. 

Several days after this call, respondent went to 

Billings and discussed the property, terms, and possible 
methods of payment with the potential and eventual buyer, 

~illiam Scilley. Later respondent went to the property to 

discuss the sale with appellant, Lorna Ballard. When she 

arrived, Scilley was there talking with Virgil Ballard, 

appellantf s husband. At that time respondent talked to 

appellant and discussed the buyer, the amount of money that 

would be required at closing to pay off the underlying 

mortgages and other necessary information regarding the 

sale. Respondent then left the property. 

On the same day, Scilley made an offer for the purchase 

of the property. This offer was neither accepted nor rejected by appellant and her husband. Appellant and her 

husband continued to negotiate with Scilley without advising 

respondent of these negotiations. A short time later, 

appellant's husband went to Billings and met with Scilley at 

his place of business. Virgil Ballard attempted to accept 

the first offer made by Scilley; however, he was informed 

that that offer was no longer up for consideration. During 

that meeting, however, Scilley and Ballard did reach an 

agreement regarding the sale of the property at a price less 

than originally offered by Scilley. This agreement was 

eventually reduced to writing, and the contract for deed was 

executed in the amount of some $70,000. 

During this time appellant made no attempt to make 

respondent aware of the continued negotiations and efforts 

with Scilley. Respondent had no opportunity to become 

involved because appellant did not keep her informed. 

Upon learning of the sale, respondent called appellant 

and requested a commission. Appellant wrote to respondent 

and acknowledged that respondent had initially obtained the 

eventual buyer. In one letter appellant stated that she 
felt she owed respondent something and would pay $50 a month 

until the commission was paid. Since payments of $50 a 

month would take a number of years, respondent suggested 

that appellant borrow the amount from the bank. After 

repeated requests for her commission failed, respondent 

brought this suit against appellant. 

Appellant presents seven issues for our consideration. 

The first issue is whether the listing agreement dated 

September 7, 1975, was sufficient to sustain a real estate 

commission (a) under any facts, and/or (b) under the facts 

of this case. 

Appellant argues that the agreement is inadequate on 

its face for several reasons: (1) The writing does not 

adequately identify the property to be sold. (2) The listing does not define its terms. (3) The writing itself does 

not meet the requirements of specificity. 

Relying on section 28-2-603, MCA, which provides, 

"[wlhere a contract has but a single object and such object 

is . . . wholly impossible of performance or so vaguely 

expressed as to be wholly unascertainable, the entire contract is void," appellant argues that in view of the fact 

that a portion of the property was owned solely by Virgil 

Ballard and he did not sign the agreement or agree to sell 

the property, the listing on its face could not be performed. 17 Am.Jur.2d Contracts, 57 at 342. Therefore, 

appellant argues, the contract is void and impossible of 

performance. 

It has long been recognized that a cotenant in joint 

tenancy has a right and ability to sell her interest. See 

20 Am.Jur.2d Cotenancy and Joint Tenants, 516 at 109, which 

states: 
"Any act of a joint tenant which destroys one 

or more of its necessarily coexisting unities 

operates as a severance of the joint tenancy 

and extinguishes the right of survivorship. 

The act of one joint tenant in severing his 

interest in the property by alienation severs 

the joint tenancy to that extent, so that if 

there were but two tenants, the joint tenancy 

is terminated." 

This is the law in Montana. See State Board of Equalization v. Cole (1948), 122 Mont. 9, 195 P.2d 989, where the 

Court construed Section 6680 of the Revised Codes of Montana 

1937, which provided a definition of joint interest almost 

identical to the one existing in today's codes. Construing 

that statute, the Court said: 

". . . For example either co-tenant of a joint 

tenancy in real property could sever the 

estate by conveying his interest to a third 

party and as between the remaining co-tenant 

and the transferee the new estate became a 

tenancy in common. . . " 195 P. 2d at 994. 

See also Cooley v. Veling (1973), 19 Ariz.App. 208, 505 P.2d 

1381; Place v. Carmack (1974), 33 Colo.App. 411, 522 P.2d 

592; Gilles v. Norman Plumbing Supply Company of Oklahoma 

city, Inc. (0kla.App. 1975), 549 P.2d 1351; Nelson v. Davis 

(Utah 1979), 592 P. 2d 594. 

Appellant relies on the authority set forth in 17 

Am. Jur. ad, supra, to support her contention that this is a 

void contract. We find that although the citation is the 

correct holding of the law as a general rule, it is not 

relevant here as the authority is distinguishable on facts. 

In addition, she argues that the contract is impossible of 

fulfillment. A California court has noted that "[tlhe 

burden of proving the defense of impossiblity is on the 

party asserting it." Hensler v. City of Los Angeles (1954), 
Just why the contract is impossible to perform on the 

part of appellant is not clear. Appellant was free and 

capable of acting without her husband, even though here the 

husband knew at all times she had put the property up for 

sale. The previously cited cases indicate that she has a 

right to sell. She is capable of entering and performing 

contracts and being legally responsible for her acts. 

Impossiblity of performance is a strict standard that can 

only be maintained where the circumstances truly dictate 

impossibility. See Smith v. Zepp (1977), 173 Mont. 358, 567 

P.2d 923, 927, where this Court held: "The general rule is 

that, where a party to a contract obligates himself to a 

legal and possible performance, he must perform in accordance with the contract terms." The fact that a party contracts to sell something he does not own does not raise the 

defense of impossibility. He may be held liable when he 

rescinds without legal justification. Federal Deposit Ins. 

Corporation v. Peterson (1937), 104 Mont. 447, 67 P.2d 305. 

In addition, appellant raises the issue that the contract should be declared void due to vagueness. Here, 

appellant protests too little and too late. No objection of 

vagueness were made at the time of the signing of the real 

estate agreement. No objection of vagueness was made at the 

time the property was advertised for sale. No vagueness 

argument was made when respondent brought people to the 

property. There wasnotany objection of vagueness at the 

time Scilley made his offer, and no objection of vagueness 

at the time the sale was consummated. Vagueness was not 

raised during the trial and, therefore, is not properl-y 

before us on appeal. 
Appellant participated in this contract throughout its 

entire existence. Where vagueness or imprecision in a 

contract is raised, the courts have set a standard for resolving such questions. In S-W Co. v. Schwenk (1977), 173 

Mont. 481, 568 P.2d 145, this Court said: 

"Where ambiguity does exist on the face of 

the contract, the question of the parties' 

intent as to the language involved is submitted to the trier of fact. [Citation omitted. ] Ambiguity exists when a contract taken 

as a whole in its wording or phraseology is 

reasonably subject to two different interpretations. [Citations omitted.] . . ." 568 

P.2d at 147. 

As we have previously noted, the trier of fact must 

take the contract as a whole. We stated further in Schwenk: 

"When a contract is ambiguous, the language 

of the parties must be considered in light 

of subject matter and the surrounding circumstances, as well as the positions of the 

parties at the time the contract was made. 

[Citations omitted.] . . ." 568 P.2d at 148. 

Here, the surrounding circumstances and the positions 

of the parties clearly indicate their intent to enter into 

an agreement and to perform that agreement. The parties 

entered into a written agreement; at the expiration of that 

agreement they entered into a second listing agreement. 

During that time respondent continued to advertise the 

property in local newspapers. In addition, respondent 

worked with appellant in writing letters for appellant to 

obtain surveyors to get bids on surveying the property. At 

the time of the sale appellant stated she felt that respondent was responsible for the sale. Appellant only changed 

her mind when influenced by her husband. It is interesting 

to note in the transcript that in answer to a question, 

appellant stated: 

"Q. So you wrote that letter, excuse me, on 

November 25th, you thought that she had brought 

about the sale, but then when your husband told 

you that he did the sale, you changed your 

mind. A. Yes." 
This Court has held that, when reviewing a conflict in 

testimony regarding an ambiguity, the trier of fact is 

entitled to determine the meaning of the contract in its own 

right. In Dooling v. Casey (1969), 152 Mont. 267, 448 P.2d 

749, 754, we stated: 

". . . Where there is a conflict in the testimony as to the intention of the parties respecting an ambiguity in a contract, determination of the true meaning of the contract is 

one of fact for the jury. . . Upon appeal, 

this Court will review the evidence only to 

the extent of determining whether there is 

substantial credible evidence supporting the 

verdict. [Citations omitted. 1 " 

Concerning the issue of vagueness that was raised on 

appeal, we find that this issue was not raised in the District Court. Thus, it will not be considered on appeal. 

The standard of review is that this Court will not 

review questions decided by the trier of fact if there is 

substantial credible evidence to support the finding in the 

lower court. Recently, in Ankeny v. Grunstead (1976), 170 

Mont. 128, 551 P.2d 1027, 1031, this Court noted: "We keep 

in mind the rule that a trial court's findings will not be 

disturbed on appeal where there is substantial evidence to 

support them." Here, the jury listened to the testimony, 

found substantial evidence and based their verdict on that 

evidence. 

The next issue is directed at whether the factual 

situation warrants recovery. On this issue appellant is 

attempting to raise factual issues that were resolved by the 

jury. The definition of an exclusive or nonexclusive contract and the rights of the parties under the contract were 

determined by the lower court. The question of resolving 

ambiguities and the position of this Court on that issue has 

been clearly considered in previously cited cases. See S-W 

Co. v. Schwenk, supra, and Dooling v. Casey, supra. 

As previously noted, this Court will only set aside the 
be entitled to his compensation.' Ice v. Maxwell, 61 W.Va. 9, 55 S.E. 899. 'It is sufficient 'to entitle real estate brokers to their 

commissions if a sale is effected through 

their agency as its procuring cause, although 

the sale may be made by the owners of the 

property, if by their exertion the purchaser 

and the owner are brought together and a sale 

results therefrom.' Plant v. Thompson, 42 Kan. 

664, 22 Pac. 726. . ." 127 P. at 332. 

The law in this state is well settled. The broker need 

not do everything to complete the sale but only be responsible 

for bringing the parties together. In Shober v. Dean (1909), 

39 Mont. 255, 102 P. 323, 324, this Court set the standard 

which should judge broker causation: 

". . . It appears to us that there can be but one 

answer: It was intended that, if the efforts of 

Shober set in motion a chain of events which finally 

culminated in a sale of the property, then he should 

recover the maximum fee; . . ." 

The facts in this case fit the Shober definition on all 

fours. Respondent placed an advertisement in the newspaper 

which accidentally named an erroneous price. As a result of 

that advertisement, Scilley, the eventual buyer, called 

respondent and obtained the location and identification of 

the property and the sellers. Because it is not a normal 

practice for the real estate agent to pass this information 

to the buyer when the agent has a nonexclusive listing, 

respondent immediately called appellant and told her that 

she had advised Scilley who the owners were and what property was for sale and that Scilley was her customer. This 

call only related to Scilley, as respondent had not given 

appellant's name or a description of the property to any 

other callers. 

Shortly after this conversation, respondent went to 

Billings, met with Scilley and discussed the property. 

In addition respondent discussed the possibility of Scilley, 

who was in the automobile business, giving respondent one 

of his vehicles as part of a commission. Within two days of 
decision of the trier of fact when it lacks substantial and 

supporting credible evidence. Here, the facts previously 

set forth, as well as the actions of the parties, indicate 

the parties clearly intended to perform this contract. Both 

parties did all things necessary and proper to fully perform 

the contract. It was only when it became necessary to pay 

the commission that appellant attempted to ignore her agreement with respondent. 

The next issue is directed at whether the requirements 

of the real estate listing agreement were sufficiently met 

by the broker to allow the collection of her commission. 

Appellant argues that this Court in considering her 

appeal should use the definition of a sale made set forth in 

recent cases to review the lower court judgment. Particularly cited and relied upon by appellant is Diehl and Associates, Inc. v. Houtchens (1977), 173 Mont. 372, 567 P.2d 

930. Our holding there is clearly distinguishable. In 

Diehl no sale took place, while in the present case we have 

a concluded transaction. The question here is whether the 

broker is entitled to a commission from the sale. 

Diehl is not the only statement of Montana law regarding the interpretation of brokerage contracts. The question 

we have before us here is whether respondent was the "procuring" force in bringing the buyer and the seller together. 

It has long been the law of Montana, see Shober v. 

Blackford (1912), 46 Mont. 194, 127 P. 329, that the ultimate sale terms need not be what the broker ' s contract 

states, but only that the seller and the buyer were brought 

together by the broker. In Shober we stated: 

". . . 'Where an agent contracts to furnish a 

purchaser for land at a stipulated price and 

such agent does furnish a purchaser whom the 

owner accepts, and in the negotiations of the 

contract the owner agrees upon and accepts a 

different price from that at which the agent 

was instructed to sell, still such agent would 
this meeting, respondent, upon going to appellant's ranch 

to discuss the potential sale, closing costs and other 

items, met Scilley at the ranch where he was talking to 

appellant's husband. 

In an early Montana case, Apple v. Henry (1923), 66 

Mont. 244, 213 P. 444, this Court set forth the law concerning procurement by a broker: 

". . . The rules which determine the right of a 

real estate broker to compensation are of now too 

well settled to admit of much controversy. If the 

broker finds and introduces to his principal a person who is ready, able, and willing to purchase or 

exchange upon terms acceptable to the principal, 

the broker has earned his commission. Laux v. 

Hogl, 45 Mont. 445, 123 Pac. 949. It is altogether 

immaterial that the final contract between defendant and Anderson was made without the presence, 

or even the knowledge, of plaintiff, if it resulted 

from the means and efforts employed by him [citation omitted] , or that it provided different terms 

from those submitted to plaintiff [citation omitted]. In Shober v. Blackford, 46 Mont. 194, 127 

Pac. 329, this court approved the following statement of the rule by Rapalje on Real Estate Brokers: 

"'Where the terms of sale are fixed by the vendor, 

in accordance with which the broker undertakes to 

produce a purchaser, yet if, upon the procurement 

of the broker, a purchaser comes, with whom the 

vendor negotiates and thereupon voluntarily reduces 

the price of the property, or the quantity, or 

otherwise changes the terms of sale, as proposed 

to the broker, so that a sale is consummated, or 

terms or conditions are offered which the proposed 

buyer is ready and willing to accept, in either 

such case the broker will be entitled to his commission at the rate specified in his agreement 

with his principal.'" Apple, 213 P. at 445-446. 

See also Mohamed v. Robbins (1975), 23 Ariz.App. 195, 531 

Appellant has further raised the Diehl issue by citing 

the case of Roscow v. Bara (1943), 114 Mont. 246, 135 P.2d 

364. Roscow is distinguishable on the same basis as Diehl. 

In Roscow no sale took place. In the instant case the sale 

took place. The arguments addressed above to distinguish 

Diehl are equally suitable to rebut the issues raised by 

appellant in citing Roscow. 
The next issued raised is whether, even if the Court 

finds that respondent was required only to find a purchaser 

ready and willing to enter into the sales agreement, that 

the terms were not met. 

Appellant claims that the final terms accepted by the 

sellers were different than those given in the original 

listing and/or discussed by respondent. From this appellant 

concludes that no commission should be paid. This is clearly 

erroneous. See Apple, 213 P. at 445-446 (quoted above); 

Mohamed v. Robbins, supra. 

In addition, appellant cites Shober v. Blackford, 

supra, wherein the appellant argued that the seller was 

trying to avoid the commission by negotiating a different 

price. Here, the seller is trying to avoid the commission 

by excluding the broker from negotiation, and the cases are 

clearly distinguishable. Appellant is attempting to deal 

respondent out of her commission by taking over the sale and 

not advising her of the activities. 

The next issue raised is whether it was error for the 

court to give instructions on procuring cause under the 

facts of this case. Appellant objects to Instruction Nos. 

7, 9, and 14. These are contract interpretation instructions taken almost verbatim from Montana statutes and are 

applicable to this case. 

This Court, in discussing instructions on the interpretation of contracts, noted in Montana/Dakota Utilities v. 

Lower Yellowstone (1978) , Mont. , 585 P.2d 626, 35 

St.Rep. 1409, the following guidelines for interpreting 

contracts : 

"In interpreting contracts, our guideposts are 

the statutes enacted by the legislature, and a 

large body of case law. In short, a contract 
is to be construed so as to make it definite, 

operative and reasonable (section 13-709, 

R.C.M. 1947); words are to be understood in 

their usual sense (section 13-710, R.C.M. 

1947); and technical words are interpreted 

in the sense used in business to which they 

relate (section 13-711, R.C.M. 1947). . ." 

585 P.2d at 630-631, 

In this case, the District Court did just that. The jury 

was given instructions to use the words in a normal, operative and reasonable sense. In addition, because the instructions set forth the actual law of Montana for the 

construction of contracts, they are part of the contract 

itself. See Ryan v. Ald, Inc. (1965), 146 Mont. 299, 406 

Appellant argues that the court erred in refusing her 

Instruction Nos. 6 and 7, which read: 

" [6.] There is a distinction between a 

brokerage contract which requires a broker 

to merely find a purchaser and a brokerage 

contract which requires a broker to sell, 

make or effect the sale. In the first case 

the broker earns his commission when he procures a buyer able, ready and willing to 

purchase on the seller's terms. A broker 

employed to sell or effect a sale does not 

earn his commission until he completes the 

sale. Completion of the sale where real 

property is involved amounts to payment of 

the purchase price and conveyance of the 

title. 

"[7.] As a general rule a broker is not 

entitled to compensation until he has performed the undertaking assumed by him; and, 

in the absence of any contrary provisions in 

this contract, it matters not how great have 

been his efforts nor how meritorious his services if he is unsuccessful in accomplishing 

the object of his employer, he is not entitled to compensation. " 

Appellant contends that these instructions should have been 

given on the basis of Diehl & Associates, Inc. v. Houtchens, 

supra. As previously noted, both the trial court and this 

Court have distinguished Diehl in that in the instant case 

there was a sale, while in Diehl there was no sale. The 
instructions, therefore, could not properly be founded in 

the holding of Diehl. 

We have also examined appellant's argument concerning 

the refusal of the District Court to give her proposed 

Instruction No. 10 which read: 

"You are instructed that in order to recover a commission on a sale a broker must 

prove by a preponderance of the evidence 

that he performed under the terms of the 

agreement. " 

We find no error in the refusal of this instruction, as 

it was covered by given Instruction No. 5. 

The court properly instructed the jury, and we find no 

error. 

Finally, appellant raises the issue of whether it was 

error in not allowing her attorney to argue for a lesser 

commission. It was appellant's contention, on argument, 

that respondent was not entitled to a commission on the sale 

of all the property, but only upon the interest owned by 

appellant. This was objected to by respondent's counsel at 

the time of argument several times on the basis that the 

court had instructed the jury, in Instruction No. 21, on the 

method of calculating the damages in the event there was a 

verdict for plaintiff. The arguments being made by counsel 

for appellant were clearly contrary to these instructions. 

We find no error in the objection by respondent to the 

argument of appellant's counsel. 

The judgment is affirmed. 
We concur: 

Chief- JU'S tice I 

/ / Justices (j