No. 82-341 

IN THE SUPREP4E COURT OF THE STATE OF JYIONTANA 

1983 

BLUMFIELD AGENCY, BILL EDWARDS 

and DUROCHER REALTY, 

Plaintiffs and Appellants, 

LITTLE BELT, INC., a Mont. corp., 

RUSSELL B. PEDERSON, JEROME D. 

PEDERSON, and WALLACE PEDERSON, 

Defendants and Respondents. 

Appeal from: District Court of the Fourteenth Judicial District, 

In and for the County of Wheatland, The Honorable 

Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellants: 

Alexander & Baucus; Ward E. Taleff, Great Falls, 

MT 

Graybill, Ostrem, Warner & Crotty; Donald L. 

Ostrem, 18-6th St. No., Ste. 200, Great Falls, 

Montana 

For Respondents: 

Moore, Rice, OIConnell & Refling; Yary Lou Schlegal, 

P. 0. Box 1288, Bozeman, MT 59715 

Submitted on Briefs: December 16, 1982 

Decided: April 28, 1983 

~iled: APR 2 8 1983 

-- 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Plaintiffs appeal a summary judgment of the Wheatland 

District Court which denied them recovery of a real estate 

commission and which held them liable for the defendants' 

attorney fees. 

The facts are not in dispute. Whether plaintiffs are 

entitled to a real estate commission depends on the 

interpretation of the language in a listing agreement which 

provides that the brokers were "employed . . . to sell or 

exchange the property described hereon at the selling price 

and on the terms noted. . . . " Plaintiffs would give no 

meaning to this language and would also ignore our previous 

holdin9 in Diehl and Associates, Inc. v. Houtchens (1977), 

173 Mont. 372, 567 P.2d 930, where we interpreted virtually 

identical language. On the attorney fees question, Blumfield 

Agency argues that the fee awarded is excessive; plaintiff 

Durocher Realty argues it should not be bound by the award of 

attorney fees because it was not a party to the agreement 

between Rlumfield Agency and the defendants. We affirm. 

Defendants own a ra.nch in Wheatland County and listed it 

for sale through the Blumfield Agency of Great Falls. After 

obtaining the listing, Blumfield Agency, pursuant to an 

authorization in the listing agreement, enlisted the aid of 

Durocher Realty in September to help sell the ranch. These 

agencies entered into a cooperative agreement. The listing 

agreement, a standard preprinted form, with print so small it 

is hardly readable, provided that the Blumfield Agency was 

employed ". . . --- to sell or exchange the property described 
hereon at the selling price and on the terms noted . . ." 

(Emphasis added.) 

On September 16, 1980, six days after the listing 

agreement was signed, Robert Durocher, working as the 

Durocher Agency, found a prospective buyer and presented an 

earnest money and buy-sell agreement to the 

defendant-sellers, and the defendants signed the agreement on 

the same day. Before the sale could be completed, however, 

problems developed. 

Farmers Home Administration held a mortgage on the 

property, a fact known to all parties (and to the plaintiffs) 

at the time the buy-sell agreement was signed. Both the 

defendant-sellers and the prospective purchasers proceeded on 

the assumption the mortgage could be assumed and for the same 

interest rate. The Farmers Home Administration would only 

transfer the loan if certain conditions were met. The 

prospective purchasers were either unable or unwilling to 

assume those conditions. One of the conditions was that the 

interest rate be doubled. 

The defendant-sellers were at all times willing to 

complete the sale on the terms of the buy-sell agreement with 

the prospective buyers. It appears that the prospective 

purchasers were also willing to do so, but Farmers Home 

Administration imposed conditions which in effect changed the 

terms of the buy-sell agreement. The deal fell through. 

The plaintiffs, without consent of or even notice to the 

defendant-sellers, returned the earnest money payment to the 

prospective purchasers and by so doing terminated the 

buy-sell agreement. A short time later the 

plaintiff-realtors filed suit against the defendant-sellers 

asking for commissions in the amount of $199,500 and attorney 
fees as provided for in the listing agreement. After 

extensive discovery, both parties moved for summary judgment. 

Summary judgment was granted to the defendant-sellers and 

this appeal followed. 

The controlling authority is Diehl and Associates, Inc. 

v. Houtchens, supra. The language in the listing agreement 

in Diehl is almost identical to the language in the listing 

agreement in this case. In Diehl, we held that a listing 

agreement that employs a broker to sell property does not 

entitle the broker to a commission until the sale is 

completed--title must pass and the purchase price must be 

paid. Diehl, 173 Mont. at 379, 567 P.2d at 935. There, we 

explained the differences in real estate contracts which 

contain this kind of language and those which merely require 

that the broker find a buyer who is ready, willing and able 

to perform. The language here provides that the broker is 

employed to "sell or exchange the property," and it clearly 

falls within our holding in Diehl. 

The undeniable situation in this case is that the 

defendant-sellers were at all times willing to perform on the 

conditions of the buy-sell agreement and it appears that the 

prospective purchasers were also. However, a third party, 

the Farmers Home Administration, effectively changed the 

conditions by insisting, among other things, that the 

interest rate be doubled. Neither the seller nor the 

prospective purchaser can be faulted in this situation. 

Given these circumstances, it would be manifestly 

unconscionable to now permit the brokers to recover a 

$199,500 commission. A commission was to be paid only upon 

completion of a sale. 
The listing agreement provided that in the event of a 

dispute and court action, attorney fees for trial and 

appellate work would be paid to the prevailing party. The 

trial court ordered that the plaintiffs pay $8,415 in 

attorney fees. 

The position of the plaintiffs in this appeal is 

baffling. One law firm filed a brief on behalf of the 

Blumfield Agency and Bill Edwards. Another law firm filed a 

brief on behalf of Durocher Realty. The Blumfield Agency and 

Bill Edwards have not raised any issue concerning attorney 

fees. Accordingly, for this reason alone we affirm the award 

of attorney fees as against Blumfield Agency and Bill 

Edwards. 

On the other hand, Durocher Realty raises two issues 

with regard to attorney fees. First, Durocher claims that he 

should not have to pay any attorney fees because he was not a 

party to the listing agreement but only assisted Blumfield 

Agency in finding a purchaser. Second, Durocher argues for 

several reasons, but without any citation to the record, that 

the fee is too high. We affirm on both issues. 

Blumfield Agency and Durocher Realty signed a 

co-brokers' agreement, and by its terms Durocher Realty could 

share in the commission if a sale was completed. In filing 

suit here, Durocher Realty did precisely that--Durocher 

claimed a broker's fee for finding a purchaser. The 

complaint did not separate the claims of Blumfield Agency and 

Durocher Realty--both sued for a commission and asked for 

payment of attorney fees if they prevailed. If Durocher can 

avail himself of the benefits of the listing agreement in the 

event he won, it is hardly fair that he can disavow the 

burdens of this listing agreement because he lost. A party 
cannot avail himself of the benefits of a contract on the one 

hand but avoid the burdens of that same contract on the other 

hand. 

Durocher, without reference to the record, claims 

several factors were considered which made the attorney fees 

too high. Nor does he cite any authority for his position. 

We cannot believe therefore, that Durocher is serious about 

his claim. If so, it would have been presented with 

references to the record and with citations of authority. 

The attorney fees awa.rd as to Durocher is also affirmed. 

The order granting summary judgment to defendants and 

awarding attorney fees is affirmed. 

We Concur: 
Mr. Justice Frank B. Morrison, Jr. dissenting: 

I respectfully dissent. 

The undisputed facts establish that defendants entered 

into a real estate broker's employment contract with 

plaintiffs Blumfield Agency and Bill Edwards for the sale of 

their real property. The brokers employment contract 

provided for the payment of a commission equal to seven 

percent of the selling price of the real property. That 

contract of employment stated as follows: 

"For value received, you hereby are employed to 

sell or exchange the property described hereon at 

the selling price and on the terms noted. You 

hereby are authorized to accept the deposit on the 

purchase price. You may, if desired, secure the 

cooperation of any other broker, or group of 

brokers, in procuring a sale of said property. In 

the event that you, or any other brokers 

cooperating with you, shal'T-find -- a buyer ready and 

willing to enter into --- a deal for the said price and 

terms, orsuch other terms and prices I may accept, 

or that during your employment you place me in 

contact with a buyer to or through whom at any time 

within a 180 days after the termination of said 

employment I may sell or convey said property, I 

hereby agree to pay you --- in cash for your services a 

commission a to seven percent -- of the above 

stated selling price. " (emphasis added) 

On September 15, 1980, plaintiff Durocher Realty, 

cooperating with the listing agreement of plaintiff Blumfield 

Agency, presented to the defendants an executed earnest money 

receipt and agreement to sell and purchase. Subsequent to 

the execution of the purchase and sale agreement, problems 

arose between defendants and the purchasers over the 

assumption of an existing mortgage with the Farmers Home 

Administration. Negotiations aimed at compromise were 

conducted, but the ultimate transfer of the real property 

between purchaser and seller never took place. The agreement 

to sell and purchase was not conditioned upon assumption of 

the FHA mortgage and no showing was made that the purchasers 

were financially unable to complete the transaction. 
The plaintiffs performed under the listing agreemen.t and 

were entitled to their commission. The brokers' work was 

finished. What subsequently transpired between sellers and 

purchasers is of no consequence. Under the listing agreement 

plaintiffs are entitled to their commission. 

I would reverse and remand with directions to enter 

judgment in favor of plaintiffs.