### 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 torecover damages inthe form of a commission from the sale of 

### real estate. The 

### matter 

### was tried to 

### a jury which 

### returned a verdict forplaintiff inthe amount of $4,200 plus interest and costs. From thisjudgment, defendant appeals. This matter began with a 

### real 

### estate contract, dated March 7, 1975, between respondent realtor and appellant seller. In that contracta written listing agreement was signed setting forth a listingperiod of sixmonths. On September 7, 1975, respondent and appellant entered into another listing agreement for the same property. During the entireperiod of the listing, respondent advertised the property in the Billings Gazette and showed the property to several prospective buyers. Both the firstand second listing agreements 

### were signed only by Lorna Ballard and not by her husband, Virgil Ballard. On September 7, the 

### timeof 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 resultof this advertisement, William Scilley of Billings, Montana, called respondent about the property. Scilley came from the area inwhich the land was located and stated that he was interested inpurchasing 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 possiblemethods of payment with the potential and eventual buyer, ~illiam Scilley. Later respondent went to the property to discuss the salewith appellant, Lorna Ballard. When she arrived, Scilleywas there talking with Virgil Ballard, appellantf

### s husband. Atthat time respondent talked to appellant and discussed the buyer, the amount of money that would be required atclosing topay off the underlying mortgages and other necessary information regarding the sale. Respondent then leftthe property. On the same day, Scilleymade an offer for the purchase of the property. This offerwas 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

### timelater, appellant's husband went toBillings and 

### metwith Scilley at his place of business. Virgil Ballard attempted to accept the firstoffermade by Scilley; however, he was informed that that offer

### was no longer up for consideration. During thatmeeting, 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 towriting, and the contract for deed 

### was executed in the amount of some $70,000. During this 

### timeappellant made no attempt tomake respondent aware of the continued negotiations and efforts with Scilley. Respondent had no opportunity tobecome involved because appellant did not keep her informed. Upon learning of the 

### sale, respondent called appellant and requested a commission. Appellant wrote torespondent and acknowledged thatrespondent had initiallyobtained the eventual buyer. In one 

### letter appellant stated that shefeltshe owed respondent something and would pay $50 a month until the commission 

### waspaid. 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 suitagainst appellant. Appellant presents seven issues for our consideration. The firstissue 

### iswhether the listingagreement 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 tobe 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 sovaguely expressed as tobe wholly unascertainable, the entirecontract 

### isvoid," appellant argues that inview of the fact thata portion of the property 

### was owned solelyby Virgil Ballard and he did not sign the agreement or agree to 

### sell the property, the listing on 

### its face could not be performed. 17Am.Jur.2d Contracts, 57 at342. Therefore, appellant argues, the contract isvoid and impossible of performance. It has long been recognized that a cotenant injoint tenancy has a right and ability to sell her interest. See 20 Am.Jur.2d Cotenancy and Joint Tenants, 

### 516 at109, which states:"Any actof a joint tenant which destroys one ormore of 

### its necessarily coexisting unities operates as

### a severance of the joint tenancy and extinguishes the right of survivorship. The actof one joint tenant in severing his interest inthe property by alienation severs the joint tenancy to that extent, so thatif there

### werebut two tenants, the joint tenancy 

### is terminated." This is the 

### lawinMontana. See State Board of Equalization v. Cole (1948), 122Mont. 9, 195P.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 estateby conveying his interest to a third party and as between the remaining co-tenant and the transferee the new estatebecame a tenancy incommon. 

# .

# ." 195 P.2d at994. See alsoCooley v. Veling (1973), 19Ariz.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 

### lawas

### a general rule, it 

### is not relevant here 

### as the authority 

### isdistinguishable 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 toperform on the part of appellant isnot clear. Appellant 

### was free and capable of acting without her husband, even though here the husband knew atall 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), 173Mont. 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 inaccordance with the contract terms." The fact that a party contracts to 

### sell something he does not own does not raise the defense of impossibility. Hemay be held liablewhen he rescinds without legal justification. Federal Deposit Ins. Corporation

### v. Peterson (1937), 104Mont. 447, 67 P.2d 305. In addition, appellantraises the issue that the contract should be declared void due tovagueness. Here, appellantprotests too 

### little and too 

### late. No objection of vagueness 

### weremade atthe time of the signing of the real estate agreement. No objection of vagueness was made atthe 

### time the property was advertised for sale. No vagueness argument 

### was made when respondent brought people to the property. There wasnotany objection of vagueness atthe 

### timeScilleymade his offer, and no objection of vagueness atthe 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 ina contract 

### israised, the courts have seta standard for 

### resolving such questions. In S-W Co. v. Schwenk (1977), 173 Mont. 481, 568 P.2d 145, thisCourt 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

### itswording orphraseology is reasonably subject to two different interpretations. [Citations omitted.] 

# . .." 568 P.2d at147. As 

### we have previously noted, the trier of factmust take the contract 

### as a whole. We stated further inSchwenk: "When a contract 

### is ambiguous, the language of the parties must be considered inlight of subjectmatter and the surrounding 

### circumstances, aswell

### as the positions of the parties 

### atthe 

### timethe contractwas made. [Citations omitted.] 

# ..." 568 P.2d at148. 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; atthe expiration of that agreement they entered into a second listing agreement. During that 

### timerespondent continued to advertise the property inlocal newspapers. In addition, respondent worked with appellant inwriting letters for appellant to obtain surveyors to getbids on surveying the property. At the 

### timeof the sale appellant stated she feltthatrespondentwas responsible for the sale. Appellant only changed her mind when influenced by her husband. It

### is interesting to note in the transcript that inanswer 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 thathe 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 todetermine the meaning of the contract in

### its own right. InDooling v. Casey (1969), 152 Mont. 267, 448 P.2d 749, 754, 

### we stated: 

# ".



# . .Where there 

### is a conflict inthe 

### testimony 

### as to the intention of the parties 

### respecting an ambiguity ina contract, determination of the truemeaning of the contract 

### is one of factfor the jury. 

# . . Upon appeal, this Court 

### willreview 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 thatwas raised on appeal, 

### we find that this issuewas not raised in the DistrictCourt. Thus, it willnot be considered on appeal. The standard of review 

### is that this Court

### willnot review questions decided by the trier of factif there 

### is substantial credible evidence to support the finding in the lower court. Recently, inAnkeny v. Grunstead (1976), 170 Mont. 128, 551 P.2d 1027, 1031, this Court noted: "We keep inmind the rule that 

### a trial court's findings 

### willnot 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 

### isdirected atwhether the factual situationwarrants 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 inpreviously cited cases. See S-W Co. v. Schwenk, supra, and Dooling v. Casey, supra. Aspreviously noted, thisCourt

### willonly 

### set aside thebe entitled tohis compensation.' 

### Ice v. Max

### well, 61W.Va. 9, 55 S.E. 899. 'It 

### is sufficient 'to entitlereal estatebrokers to their 

### commissions if 

### a sale 

### is effected through their agency as

### itsprocuring cause, although the salemay be made by the owners of the property, if by their exertion the purchaser and the owner arebrought together and a sale results therefrom.' Plantv. Thompson, 42 Kan. 664, 22 Pac. 726. 

# .."127P. 

### at332. The law in this state

### iswell settled. The broker need not do everything to complete the salebut 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: Itwas intended that, if the efforts of Shober setinmotion a chain of eventswhich finally culminated ina sale of the property, then he should recover the maximum fee; 

# . 

# .." The facts inthis case fitthe 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 estateagent topass this information to the buyer when the agent has a nonexclusive listing, respondent immediately called appellant and told her that she had advised Scilleywho 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, 

### metwith Scilley and discussed the property. In addition respondent discussed the possibility of Scilley, who was inthe automobile business, giving respondent one of his vehicles 

### as part of a commission. Within two days ofdecision of the 

### trier of factwhen it lacks substantial and supporting credible evidence. Here, the factspreviously 

### set forth, 

### as well as the actions of the parties, indicate the parties clearly intended to perform this contract. Both parties did allthings necessary and proper to fullyperform the contract. It

### was only when it became necessary topay the commission that appellant attempted to ignore her agreement with respondent. The next issue isdirected atwhether 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 inconsidering her appeal should use the definition of 

### a salemade 

### set forth in recent cases to review the lower courtjudgment. Particularly cited and relied upon by appellant 

### is Diehl and Associates, Inc. v. Houtchens (1977), 173Mont. 372, 567 P.2d 930. Our holding there isclearly distinguishable. In Diehl no sale took place, while in the present case 

### we have

a concluded transaction. The question here iswhether the broker 

### is entitled to a commission from the sale. Diehl 

### isnot the only statement of Montana 

### lawregarding the interpretation of brokerage contracts. The question



### we have before us here 

### iswhether respondent was the "procuring" force inbringing 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 ata stipulated price and such agent does furnish 

### a purchaser whom the owner accepts, and inthe negotiations of the contract the owner agrees upon and accepts 

### a different price from that atwhich the agent was instructed to 

### sell, still such agent wouldthismeeting, respondent, upon going to appellant's ranch todiscuss the potential sale, closing costs and other 

### items, met Scilley atthe ranch where he was talking to appellant's husband. In an earlyMontana case, Apple v. Henry (1923), 66 Mont. 244, 213 P. 444, thisCourt 

### set forth the 

### lawconcerning procurement by a broker: 

# ".

.. The ruleswhich determine the right of a real estatebroker to compensation areof now too 

### well settled to admit of much controversy. If the broker finds and introduces to his principal a person who 

### isready, able, and willing topurchase or exchange upon terms acceptable to the principal, the broker has earned his commission. Laux v. Hogl, 45 Mont. 445, 123Pac. 949. It 

### is altogether immaterial that the finalcontract 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 toplaintiff [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, inaccordance 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 

### termsof sale, as proposed tothe broker, so that a sale

### isconsummated, or 

### terms or conditions areoffered which the proposed buyer 

### isready and willing to accept, ineither such case the broker willbe entitled to his commission atthe rate specified inhis agreement with his principal.'" Apple, 213 P. at445-446. See alsoMohamed v. Robbins (1975), 23 Ariz.App. 195, 531

Appellant has further raised the Diehl issue by citing the case of Roscow v. Bara (1943), 114Mont. 246, 135P.2d 364. Roscow 

### isdistinguishable on the 

### samebasis as Diehl. InRoscow 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 inciting Roscow.The next issued raised 

### iswhether, even if the Court finds thatrespondent 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 sellerswere 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. at445-446 (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 outof her commission by taking over the 

### sale and not advising her of the activities. The next issue raised 

### iswhether 

### it was error for the court togive instructions on procuring cause under the factsof 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, indiscussing instructions on the interpretation of contracts, noted inMontana/Dakota Utilitiesv. 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 tobe construed so as tomake it definite, operative and reasonable (section 13-709, R.C.M. 1947); words are tobe understood in their usual sense (section 13-710, R.C.M. 1947); and technical words 

### are interpreted in the sense used inbusiness towhich they relate (section 13-711, R.C.M. 1947). 

# . ." 585 P.2d at630-631, In this case, the DistrictCourt did just that. The jury

was given instructions touse the words ina 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 inrefusing her Instruction Nos. 6 and 7, which read: 

### "[6.] There 

### is a distinctionbetween 

### a brokerage contractwhich requires a broker tomerely find a purchaser and a brokerage contractwhich requires a broker to sell, make or effect the 

### sale. In the firstcase 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 oreffect a 

### sale does not earn his commission until he completes the sale. Completion of the salewhere real property is involved amounts topayment 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, inthe absence of any contrary provisions in this contract, 

### it matters not how great have been his effortsnor how meritorious his 

### services if he 

### isunsuccessful 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 inthat in the instant case there was a sale, while inDiehl there was no 

### sale. The

### instructions, therefore, could not properly be founded in the holding of Diehl. We have alsoexamined appellant's argument concerning the refusal of the DistrictCourt togive her proposed Instruction No. 10which read: "You are 

### instructed that inorder 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 inthe 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, appellantraises 

### the issue of whether it

### was

error innot allowing her attorney to argue for a lesser commission. It

### was appellant's contention, on argument, thatrespondent was not entitled to 

### a commission on the sale of all

### the property, but only upon the interest owned by appellant. This was 

### objected toby respondent's counsel at the time

### of argument several times

### on the basis that the courthad instructed the jury, inInstruction No. 21, on the method of calculating the damages inthe event there

### was a verdict forplaintiff. The arguments being made by counsel for appellantwere clearly contrary tothese instructions. We find no error inthe objection by respondent to the argument of appellant's counsel. The judgment is

### affirmed.We 

### concur:

Chief-

### JU'S tice I

/

## /Justices (j