No. 80-227 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

RAD LEE PAYNE, Plaintiff and Appellant,

vs. BILLIE BUECHLER, Defendant and Respondent.

Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone. Honorable NatAllen, Judgepresiding. Counsel of Record: ForAppellant: Gerald J. Neely, Billings, Montana For Respondent: Berger, Anderson, Sinclair & Plurphy, Billings, Montana

Filed: Submitted on briefs: December 17, 1980 Decided

## :lT!R 261901Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. This is an actionby a real estate broker to collect a commission under a written contract granting him the exclusive right to sell the property. During the termof the listing, the property owner canceled the listing and sold the property herself. From a judgment of the District Court of Yellowstone County denying recovery of the commission, the broker appeals. Plaintiff and appellant is Rad Lee Payne, a licensed real estate broker in Billings, Montana. Defendant and respondent is BillieBuechler, the owner of the Red Rooster Bar in Shepherd, Montana. On July 5, 1977the owner and broker entered into a written agreement whereby the broker was employed to sell the owner's bar, liquor license, furniture and fixtures, a threebedroom residence and four lots for $139,000 on a 10-year installment basis at841%interest. The written agreement provided, among other things: "THIS LISTING IS AN EXCLUSIVE LISTING and you hereby aregranted the absolute, sole and exclusiveright to sell or exchange the said described property. In the event of any sale by me orany otherperson, orof exchange or transfer of said business, personal property, lease(s) 

## , if any, or any part thereof, during the term of your exclusive employment, or in case I withdraw the authority hereby given prior to said expiration date, I agree to pay you the said commission just the same as if a sale had actuallybeen consummated by you." The agreement provided that the commission was 10%of the selling price. The expiration date of the agreement and listing was January 1, 1978. The agreement provided for reasonable attorney fees in case of suiton the contract. The broker proceeded to advertise the property in the BillingsGazette, prepared and mailed brochures including the property which went to approximately 3,000 potential out-of -state buyers, and showed the property to a number of people. He sent further information to those making inquiries and responded to telephone inquiries. He expended $1,120 in attempting to sellthe property. Thereafter on September 15, 1977, the owner sent a letter to the broker as follows: "Dear Rad: "Having decided tokeep the bar, I wish to take it off the market and cancel my listing. "If in the future I want to list it I willgive you firstchance. "Yours truly, "BillieBuechler "Red Rooster Bar "Shepherd, Mont. 59079" Twelve days later on September 27, the owner entered into

an agreement to sell the bar to a third party for $120,000. The broker filed hiscomplaint to collect his 10% commission, interest from the dateof sale, attorney fees and costs. The owner answered denying the contract was exclusive and alleging that the broker's authority was terminated prior to sale and that the purchaser was not procured through any effortsof the broker. Pretrial discovery consisted of interrogatories and

answers of the broker and owner, depositions of the broker, his fatherwho was associated inbusiness with him, and the owner. The case came on for trial on March 26, 1980before the District Court sittingwithout a jury. Admitted inevidence without objection were the deposition and exhibits thereto of the broker; the deposition of his father; an exhibit concerning the broker's attorney fees; the letter from the owner to the broker canceling the listing; an exhibit relating to the broker's costs and expenses; the interrogatories and answers of the broker and the owner; and a real estate listing agreement on the bar between the owner and another broker. The broker alsomoved for admission inevidence of the deposition of the owner excepting therefrom certain partswhich the broker contended were par01 evidence and inadmissible; the owner sought admission inevidence of herentiredeposition; and the court reserved a ruling on the admissibility of those partsobjected to and admitted the rest. Atthe trial the broker, the owner and a Mr. VanLueschene testified inperson, albeitbriefly. The District Court entered findingsof fact, conclusions of lawand judgment in favor of the owner. The substance of the court's findingswas that the written agreement granting the broker the exclusiveright to sell the bar was entered into by the broker and owner on July 5, 1977; thatthe owner did not intend to grant the broker the exclusive right to sell the bar as she had atleast two other listingswith other real estate agencies on the same property in effect on July 5, 1977; thatno consideration flowed from the broker to the owner other than their mutual contemplation that the broker would attempt to attract prospective purchasers forhisown benefit; thatthe owner advised the broker on September 15, 1977, that the agreement was canceled; and that the broker had nothing to do with attracting the subsequent purchasers to contact the owner orto buy the property. From these findingsthe court concluded that the written contract of July 5 lacked consideration and mutuality and the

owner had the right to revoke it at any time; thatthe agreement

was not an exclusive agreement to sell the owner's property; and thatthe owner acted in good faith in terminating the written contract and did not perpetrate a fraud on the broker. Judgment forthe owner was entered accordingly. We frame the issues on appeal in thismanner: (1)Did the written contract between the broker and owner lack consideration and mutuality? (2)Was there sufficientevidence to support the finding that the written contractwas not intended to and did not give the broker the exclusive right to sell the property? (3)Did the owner have the right to cancel the writtencontractduring its term without liability for the commission? Lack of considerationwas not raised as a defense to the written contract by the owner but becomes an issue on appeal by

reason of the District Court's findings and conclusions. It has been regularlyheld that a broker's expenditure of timeand money to find a purchaser is sufficientconsideration for the promise topay a commission and upon such expenditure of time and money, the agreement becomes bilateral and binding upon the owner. Kimmel v. Skelly (1900), 130Cal. 555, 62 P. 1067; Garrett v. Richardson (1962), 149Colo. 449, 369 P.2d 566. Here the owner employed the broker on a commission basis and the broker's expenditureof his time and $1,120 of hismoney to attract a purchaser constituted consideration for the owner's agreement to pay a commission. The District Court further found that the agreement lacked mutuality. Mutuality of obligationwas created by the effortsof the broker to find a purchaser for the property on the owner's terms and the broker's expenditure of time and money inthis effort. Harris v. McPherson (1922), 97 Conn. 164, 115A. 723, 24 ALR 1530. We are next faced with the issue of whether the evidence is sufficient to support the court's finding that the owner did not intend to give the broker the exclusive right to sell the property and the written contract was not an exclusive agreement to sell. The written contract plainly states on its face that the broker is granted the exclusive right to sell the property to the exclusion of the owner or any other person. The District Court's findings and conclusions to the contrary are clearly based on the testimony of the owner that she did not intend to give the broker an exclusive listing; that she had previously given listingstoother agencies which were still ineffect, one of which was produced and admitted in evidence; and that the broker had written "nonexclusive" on her copy of the contract.She also called a Mr. VanLueschene who testified that "nonexclusivel'was written on her copy of the agreement. Her copy of the written agreement was never produced; she testified that she had destroyed it afterher home had been vandalized and molasses and ketchup had been poured on it. With the exception of the copy of a prior and existing listing of the property with another real estate agency, allthisevidence was objected to under the parol evidence rule and the objectionwas taken under advisement by the court. The parol evidence rule generallyprovides that the terms of a written agreement cannot be altered orcontradicted by oral testimony subject to certainwell-recognized exceptions. See section 28-2-905, MCA. The written contract supersedes alloral negotiations or stipulationswhich preceded or accompanied its execution. Section 28-2-904, MCA. In accord, Danielson & Ward

v. Danielson & Neu (1977), 172Mont. 55, 560 P.2d 893; Batey Land & Livestock Co. v. Nixon (1977), 172Mont. 99, 560 P.2d 1334; Larson v. Burnett (1972), 158Mont. 421, 492 P.2d 921. The owner contends that the foregoing parol evidence is admissible pursuant to section 26-1-103, MCA, which provides: "Where the declaration, act, oromission forms partof a transaction which is itself the fact indispute orevidence of that fact, such declaration, act, oromission is evidence as part of the transaction." Not so. This statute is simply an exception to the hearsay rule, Callahan v. C B & Q Ry. Co. (1913), 47 Mont. 401, 133P. 687. It has nothing to do with the parol evidence rule which is

a rule of substantive law. The owner also asserts thatRule 106of the Montana Rules of Evidence and Rule 32(a)(4),M.R.Civ.P., render thisparol evidence admissible. These are rules on admissibility of evidence. Par01 evidence cannot be introduced because as a matter of substantive lawthe written agreement constitutes the entire transactionbetween the parties.The owner also argues that the evidence is admissible under

an exception to the parol evidence rule set forth in section 1-4-102, MCA: "For the proper constructionof an instrument, the circumstances under which it was made, including the situation of the subject of the instrument and of the parties to it,may also be shown so that the judge be placed in the positionof those whose language he is to interpret." This statuterelates to construction and interpretation of written instruments but is irrelevant here. The language of the contract is plain and unambiguous. Under such circumstances, the language alone controlsand there is nothing for the Court to interpretor construe. Section 28-3-401, MCA and section 28-3-303, MCA. The quoted statute only applies where an ambiguity exists in the language of the contract. We have examined the cases cited by the owner which she claims support the admissibility of parol evidence that she did not intend to give the broker an exclusive listing and did not givehim such a listing. None support the admissibility of such parol evidence in thiscase. Brown v. Homestake Exploration Co. (1934), 98 Mont. 305, 39 P.2d 168, involved a lengthy written contract ambiguous on its face and parol evidence was admitted as

an aid to interpretations, a clear exception to the parol evidence rule. In Platt v. Clark (1963), 141Mont. 376, 378 P.2d 235, parol evidence was admitted, not to vary or alter the terms of a written contract, but to show thata conditionprecedent to an otherwise valid and binding lease had not occurred and therefore the written lease never became effective. See generally Anno: Applicability of Par01 Evidence Rule toWrittenListing Agreement of Real Estate Broker, 38 ALR2d 542. Here the parol evidence directlycontradicts the plain and unambiguous language of the written instrument; it does not fall within any recognized exception permitting itsadmission in evidence, and is clearlyinadmissible. Although the District Court did not rule on the broker's objection to its admission inevidence, its findings and conclusions clearlyreflect that the court based them on this inadmissible evidence. Thiswas error. The last issue concerns whether the owner had the right tocancel the written listing agreement during its termand therebydeny the broker a commission. The written agreement plainlygave the broker an exclusive right to sell the property during the term of the agreement; provided that if the owner or any other person sold ortransferred the property, the owner would pay the broker the commission; and finallyprovided that if the owner withdrew the broker's exclusive authority to sell the property, the owner would pay the broker the commission. The District Court held that the owner had the right to revoke the agreement atany timeand denied the broker any commission. Aswe have previously indicated, once the broker began performance under the written agreement by expenditure of his time, efforts and money to attract a purchaser on the owner's terms, the written agreement became bilateral and binding on both parties. It could not be unilaterally terminated by the owner without payment of the broker's commission. Piatt & Heath Co.

v. Wilmer (1930), 87Mont. 382, 288 P. 1021; McDonald & Co. v. Fishtail Creek Ranch (1977), 175Mont. 53, 572 P.2d 195; Anno: 88ALR2d 938, 966. Flinders v. Hunter (1922), 60 Utah 314, 208 P. 526, is cited by the owner for the proposition that an agency relationship is revocable by the owner unless the broker has an interest in the property. The broker's contention in thiscase is not that the owner lacks the right to terminate the broker's authority. The broker's contention is that if the owner does revoke, he is nonetheless liable for the broker's commission by the clear language of the written agreement. Flinders does not support the owner's contention that she is not liable for the commission. In summary, the District Court's findings and conclusionsthat thewritten agreement lacked consideration and mutuality and that the agreementwas not an exclusive agreement to sell the property were error as a matter of law. The judgment of the District Court denying the broker his commission is reversed. The cause is remanded to the District Court for entry of judgment for plaintiff broker in the amount of 10% of theprice at which the property was sold by defendant owner to Eugene F. Schaul and Karen M. Schaul, his wife, under the agreement dated September 27, 1977,plus reasonable attorney fees and costs. 

# %&g4*& Chief Justice

We concur:

Mr. Justice Daniel J. Shea dissents and will file a written dissent later.

### ----- No. 80-227 

## -----

PAYNE V. BUECHCER

DISSENT

Justice Daniel J. Shea

Opinion handed down 5/26/81 Dissent handed down 5/27/81Mr. Justice Daniel J. Shea dissenting:

If compelled to make a choice, Iwould affirm the judgment. Themajority is clearly in error by invoking the parol evidence rule to prevent the defendant from proving that shehad an agreementwith the plaintiff that the real estate listing contractwas nonexclusive. But even though I believe themajority is in error, this casewas sopoorly tried, and the findings and conclusions are so inadequate that I cannot in good consciencevote to affirm the judgment. Itwould be an injustice to do so. Justice requires that the judgmentbe vacated, and that the casebe tried again. REASONSWHY THE JUDGMENTMUST BEVACATEDAND THE CASE TRIED AGAIN This case took nomore than an hour to try. Attorneys for both sides stipulated that three depositions (that of the plaintiff,Rad Lee Payne,that of his father,Carl Payne, and that of the defendant,Billie Buechler)be admitted in evidence. The only exceptionwas that plaintiff's attorney reserved an objection to a part of the defendant's deposition testimony on her claim that shehad a listing agreementwith plaintiff with theword "nonexclusive" written on it in the defendant's handwriting. Plaintiff's attorney claimed that this testimony

was barred by the parol evidence rule. In addition to the depositions, the parties agreed that all pretrial interrogatoriesand their answers be admitted in evidence. The record does not disclose the answer,but I surmise that the partieswere pressured into speeding up the trial-- but itwas hurried up somuch that itwas hardly a trial at all. The trial transcript of testimony covers a total of sixteen pages. Theplaintiff did not testify to the circumstances surrounding the execution of the listing agreement. He onlytestified to the amount ofwork he put in trying to sell the defendant's property after he had obtained the listing. Nothing in the record discloseswhy he did not testify on the circumstances surrounding the execution of the listing agreement on July 5, 1977. In effect,plaintiff's case-inchief on the main legal question was based entirely on depositions. Defendant's casewas not much longer. Defendantwas called to the witness stand and her counsel asked her if she understood that "yourdepositionhas been introduced into evidence in lieu of a great deal of your testimony 

# .

# .." and she replied'kes." She then identified another listing agreement that was in existence and still in effectwhen she signed the listing agreement with plaintiff on July 5,and this listing agreementwas introduced into evidencewith no objection from the plaintiff. She then testified that she refused to sign an exclusive listing agreementwith the plaintiff. She testified thatMr. Van Lueschenewas present when she signed the listing agreementwith plaintiff. Next, she testified that she sold the property on her own and that plaintiff did nothing to find the buyer. Her testimony on direct examination covers four pages. Plaintiff's attorney then cross-examined her by asking her if she had found her copy of the listing agreement that shehad with the plaintiff, and she again explained how her copy was destroyed as a result of vandalism. This crossexamination covers one-and-a-halfpages of trial transcript. Next, defendant called Mr. Van Lueschene as a witness, and he testified that he was present when plaintiff and defendant signed the listing agreement, that he had seen the plaintiff filling ouk the listing agreement and that he had seen -11-the hord "nonexclusive"written on the defendant's copy of the

listing agreement. Before Van Lueschene testified to thecircumstances surrounding the execution of the listing agreement, plaintiff's attorney asked for a continuing objection

on the ground that this testimony should be barred by the parol evidence rule. The entire testimony (directand cross) covers fivepages of the trial transcript. In rebuttal,plaintiff called the defendant as an adverse witness. Shewas asked if she agreedwith Van Lueschene's testimony to the effect that the word "nonexclusive"was written on the front of her copy of the listing agreement, and she replied yes. He then attempted to impeachher by revealing that at her deposition, she had testified that the word"nonexc1usive"was handwritten on the back side of her copy of the listing agreement. Both sides then rested. Plaintiff then submittedproposed findings and conclusions to the court and the defendant, who did not have any prepared,

was given time to get them submitted. Later, the court adopted verbatim the defendant's proposed findings and conclusions,and entered judgment for the defendant. These findings and conclusions are absolutely inadequatelandI could not put the stamp of approval on a judgmentbased on them. The findings and conclusions contain no reference to the claimed "ncnexclusive"listing agreement. The findings

are absolutely silent as to whether plaintiff knew that defendant had one ormore listing agreements in effectwhen the listing agreementwas signed on July 5, 1977. In fact, there is no findingwhich covers themain issue of this appeal--whether parol evidence of the claimed "nonexclusive"listing agreement shouldbe admitted. The only findingwhich remotely bears on this issue, finding no. 3 states:"That the contractwas not intended by the defendant to be an exclusive right of the plaintiff to sellher property; that shehad at least two other listing agreements with other real estate agencies in effect on July 5, 1977, whereby they also had the right to sell the property." This finding is in essence, the entire basis for the trial court's decision, for the question of consideration and the question of the letter of termination are not dispositive 'of this case. The only way that the judgment should be affirmed on the basis of the findings and conclusions is to invoke the doctrine of implied findings,and I am not about to do so. Too often it is used to get trial courts off the hook who have simply not done their job. If the case was well-tried and therewas a good evidentiary record in existence, I would remand only for further findings. But here,because therewas hardly a trial at all, I would order a new trial. Iadd that neither the parties nor the trial court have pointed out a glaring discrepancy as to whowas present on July 5, 1977,when the listing agreementwas signed. In their depositions, the plaintiff, Rad Lee Payne, and his father, Carl Payne, testified that both of them were with the defendantwhen they discussed the listing agreement and when itwas signed. Both of them also testified that Mr. Van Lueschenewas not present on July 5. On the other hand, the defendantand Van Lueschene testified that only the defendant, the plaintiff, and Van Lueschenewere present on July 5when the listing agreementwas signed. Both of them unequivocally testified that Carl Payne was not there. Someone is not telling the truth, and who was present is vital to the question ofwhether plaintiff wrote "nonexclusive"on defendant's copy of the listing agreement. For these reasons, I would vacate the judgment and remand for a full trial--before a different judge. I turn now to adiscussion of why the majority is wrong in reversing the

case and ordering judgment to be entered for the plaintiff. Before proceeding to an analysis of the applicable rules, I think it necessary to expand on the facts stated in the majority opinion,and also toput this case in a procedural perspective as to how itwas tried. Theprocedural question will be considered first. As previously indicated, the depositions of plaintiff, of defendant,and of Carl Payne, were admitted in evidence. Plaintiff did reserve an objection, however, to defendant's claim that she had a "nonexclusive" listing--the objection

was apparently aimed at keeping out of evidence her discussions with the plaintiff where she claims to have insisted on a

"nonexclusive" listing. The fact is,however, that the depositions of plaintiff and of Carl Payne, cover their version of discussions they had with plaintiff as to whether the listing was to be exclusive or nonexclusive, and as to whether plaintiff or anyone else had written "nonexclusive"on defendant's copy of the listing agreement. Their deposition testimony also

covers their claim that they believed that plaintiff did not have the property listedwith anyone else at the time she signed their listing agreement, even though they knew she had previously had listing agreements in effectwith other real estate agencies. For reasons of fairness alone, the trial court should also have been allowed to consider the testimony of the plaintiff and ofVan Lueschene on their version of the signing of the listing agreement. See Rule 32(a)(4), M.R.Civ.P. But aside from this, themajority has missed the point in applying the par01 evidence rule to bar the evidence. The evidence clearlyfalls within the exceptions to the parol evidence rule (setout in the statute itself, section 28-2-905, MCA), but unfortunately, themajority opinion does not discuss the exceptions other than to state that the evidence "does not fall within any recognized exceptionpermitting its admission in evidence

# . . ." The exceptions,however, clearly apply to this case. ADDITIONAL FACTS NOT MENTIONED IN THEMAJORITY OPINION Iproceed next to an expansion of the factsbeyond those stated in themajority opinion,because itmust be done in order to reach the legal issues not covered in the majority opinion. In her deposition, the defendant explained what had happened to her copy of the listing agreement: "And onmy exhibit, or onmy contract which was destroyed when my housewas broken into, I lost allmy bank statements, lost allmy records frommy bar, I lost allmy bank statements from lastyear, everything that Ihad,becausewhen they broke intomy bar or intomy house, they poured ketchup,mustard, molasses, anything they could find inmy house, all over everything, Imean therewas no way that I could salvageanything 

# . .

# ." At trial,plaintiff's attorney did not object to this testimony introduced through defendant's deposition. He did object,however, to the remainder of the defendant's answer in the deposition,which states: "I told him right then, I said I would not list this exclusively;he said: 'Well,we really don't do this this way, but' he said, 'wewill make an exception.' So on the top ofmy listing he wrote 'non-exclusive.' Well, I have nothing to prove that he wrote this, except thatpeople

- - that were sitting there listening to me say this.

### " The basis of the plaintiff's objectionwas that the parol evidence rule barred admission of this testimony.Further,at trial, plaintiff's counsel, in his first question to the defendant on cross-examination, opened up the question of the defendant's missing copy of the listing agreement. He asked her if she had ever found her copy, and she again repeatedwhat she said in her deposition. She said that vandals had broken into her house and, among other things,had poured ketchup,mustard and molasses overmany of her papers, including the listing agreement,and that the papers had been ruined. In explaininghow she threw outmany of the items she said: "Ididn't even realizewhat Iwas throwing out,because therewas somuch stuff there that I couldn't salvage. They had poured molasses and ketchup and everything out of my cupboards all overmy papers." By her deposition testimony, and by her trial testimony, admitted without objection,defendant laid a f~undation under Rule 1004(1), M.R.Evid., for proof of the contents of a lost

or destroyed document--here the listing agreement. The next question, then, iswhether defendant and Van Lueschenewere entitled to testify that plaintiff had written "nonexclusive"

onher copy of the listing agreement. Ihave no doubt that such testimony is admissible. Contrary to the implicationsof themajority opinion,we are not dealingwith only theplaintiff's copy of the listing agreement. Rather,we are dealing with the plaintiff's copy and defendant's copy,and the defendant claims that her copy contradicts the contents of theplaintiff's copy. Although the effect of defendant's offered evidence is clearly to alter the terms of the listing agreement copy held by the plaintiff, the evidencewas offered to show that another copy of the same listing agreement existed,and that it contradicted the plaintiff's copy. Proof of the contents of a lost ordestroyed document ispermitted under Rule 1004(l),M.R.Evid. Theparol evidence rule certainly would not bar evidence that defendant's copy contained theword "nonexclusive" in the plaintiff's handwriting. Once this evidencewas admitted, theparol evidence rulewould not bar the evidence needed to explain the patent contradiction in the listing agreements. Both versions cannotbe right. The logic of the majority opinionmeans that the outcome would always have to be controlledby the copy of the contractheld by the broker. If a broker actuallywrote different terms on the seller's copy of the listing agreement, he would never have toworry about being bound by what he had written on the seller's copy. If this case were sufficiently tried to bring out the facts and if sufficient findingshad been entered, I would affirm the judgment for two reasons. First, the two copies of the listing agreement (one of which the contents had been proved by first laying a foundationof a lost or destroyed document), not only created an ambiguity in need of explanation, they created a patent contradiction forwhich the explanation

was vital. Because the actual copy of defendant's listing agreementwasnotproduced, the questionbecomes one of credibility: Either the trial courtbelieves plaintiff and his father that neither of themwrote "nonexclusive"on defendant's copy of the listing agreement, or the trial courtbelieves the defendant and Van Lueschene,thatplaintiff did write "nonexclusive"on defendant's copy of the listing agreement. Second,assuming that "nonexclusive"was neverwritten

on defendant's copy of the listing agreement, defendant still could claim on the basis of illegality, invalidity,or fraud(section28-2-905, MCA) that the listingwas nonexclusive. If the defendant told plaintiff that shedici not want an exclusive listing agreement,and if she told plaintiff that she already had a listing agreement in effect,what right would plaintiff have to claim that he had an exclusive listing agreement and be entitled to a real estate commission under the facts here? Assuming these facts,plaintiff would have known he had no right to receive an exclusive listingbecause defendant had no right to give him one. In such event, the exclusive listing would be invalid (anexception to the parol listed evidence ruk/in section 28-2-905(1)(b), MCA), and any attempt by the plaintiff to recover on this basis of an exclusive listing could well be given the name of fraud (another exception to the parol evidence rule listed in section 28-2-905(2), MCA). My explanation follows. THE MAJORITY RATIONALE FOR EXCLUSION OF THE EVIDENCE Without any analysis, themajority collects the following evidence under one umbrella and implicitly declares it inadmissible by application of the parol evidence rule: 

# ".



# ..The District Court's findings and conclusions are clearly based on the testimony of the owner that shedid not intend to give the broker an exclusive listins; that she had previously given listings

## tb other agencies which were still in effect,one ofwhich was produced and admitted in evidence;and that the broker had written 'nonexclusive'on her copy of the contract. She also calledMr. Van Lueschenewho testified that 'nonexclusive'was written on her copy of the agreement. Her copy of thewritten agreementwas never produced; she testified that she had destroyed it after her home had been vandalized and molasses and ketchup had been ~oured on it. With the exception of a -- -- -- -- - - 

### -- -- - prior andLexistinglisting -- of the property with another -- real estate agency, -- all this evidence was objected to under 

### - the par01 evidence rule 

### and -c=on was taken under advisement 

## -- by the court." (~mphasis added.) --- Only once does the majority refer to the parol evidence rule

(section28-2-905, MCA), and never to the exceptions containedin the same statute. They state: "Theparol evidence rule generally provides that the terms of a written agreement cannotbe altered or contradictedby oral testimony subject - to certainwell-recognized exceptions. See section 28-2-905, MCA." (Emphasisadded.) After summarizing the evidence that apparently violates the parol evidence rule

(previouslydiscussed), and never setting out the exceptions to the parol evidence rule, the opinion states: "Here the parol evidence directly contradicts the plain and unambiguous languageof thewritten instrument; it does not fall within 

### ---- any recognized exceptionpermitting its admission - in evidence, and is clearly inadmissible 

# .

# . . -- 

### " (Emphasisadded.) 

### I find such analysis and rationale to be seriously defective. THE PAROL EVIDENCE RULEAND ITSAPPLICATION HERE All of the evidence (excludedby the majority opinion) isplainly admissibleby the very terms of the entire parol evidence statute, section 28-2-905. Section 28-2-905 (cited but neither quoted nor applied by the majority) states: "(1) Whenever the terms of an agreementhave been reduced to writing by the parties, it is to be considered as containing all those terms. Therefore, there canbe between the parties and their representatives or successors in interest no evidence of the terms of the agreement other than the contents of the writing except -- in the following cases: "(a) when a mistake or imperfection of the writing isput in issue by thepleadings; 

### "(b) when the validity of -- the agreement is the fact in dispute. 

### ---- "(2) This sectiondoes not exclude other evidence of the circumstances under which the agreement is made or to which it relates, as defined in 1-4-102, or other evidence to explain an extrinsic ambiguity or to establish illegality or fraud. -- - "(3) The term 'agreement'. 

# .

# . includesdeeds

# . . . aswell as contracts between parties." (Emphasisadded,) Thevalidity of the agreement is "the fact in dispute" and therefore fallswithin the exception listed in section28-2-905(1) (b),MCA. That is, the plaintiff broker contends he had an exclusive listing and was therefore entitled to

a commission. But the defendant owner contends the broker had only a "nonexclusive" listing, and that he wrote "nonexclusive" on her copy of the listing agreement. Assuming the defendant to be correct, the listing agreement being held by theplaintiff broker would be invalid as an "exclusive" listing. Applied here, itwould mean that under the facts here, the plaintiff could not collect a commission. Further,although the pleadingswere not so framed, the clear intent of the defendantwas to show that theplaintiff broker was holding an - illegal exclusive listing agreement, that in fact, when all the facts are considered, including her lost or destroyed copy of the listing agreement, the broker was holding a "nonexclusive" listing agreement. This being so, the evidencewould be admissible under section 28-2-905(2). If defendant prevailed (thatis, if the trial court believed plaintiff and thewitnessVan Lueschene), the plaintiff broker would be holding an - illegal exclusive listing agreement, and he could not recover a commission based on the factsof this case. The essence of defendant's case is that she tried to show that the exclusive listing held by the broker did not constitute the entire transaction--that her copy of the listing agreement stating "nonexclusive",flatly contradicted plaintiff's copy of the listing agreement. If plaintiff had actually written "nonexclusive"on the listing agreement, or otherwise agreed to a nonexclusive listing, I have no doubthewould be guilty of fraud against the defendant by then trying to collect a commissionbased only on his copy of the listing agreement showing that he had an "exclusive" listing. For this reason, all of the testimony would be admissible under the fraud exception set out in section 28-2-905(2). -20-Under all of the circumstanceshere, admitting the evidence would mean that the trial court was facedwith a question of fact as towho to believe. If he believed plaintiff and his father,he could still order that the commissionbe paid. But if he believed the defendant and the witness Van Lueschene, he could rule (ashe did here) that the plaintiff held only a "nonexclusive"listing and

was thereforenot entitled to collect a commission under the facts of the case. I have set forth the reasonswhy I cannot affirm the District Court judgment,and I have also set forth the reasons why I cannot abideby themajority opinion. Onemore factor, however,must be addressed--and that is the evidentiary question posed by the need to introduce evidence of the contents of the destroyed listing agreement. PROOF OF CONTENTS OF THE DESTROYED COPY OF THE DEFENDANT'S LISTING AGREEMENT An implied assumption of the majority decision is that even if the defendant produced a copy of her listing agreement with "nonexclusive"written in theplaintiff's handwriting, that defendant would stillbe bound exclusively by the plaintiff's copy of the listing agreement. Such decision has behind it neither logic nor justice. The first question on defendant's listing agreement is: could the listing agreement be introduced in evidence if it still existed. Ihave no doubt that it could, for her copywas everybit asmuch an original aswas the plaintiff's copy. Further, if her copy contained theword

"nonexclusive" written on it, inplaintiff's handwriting, itwould defeat plaintiff's right to recover the real estate commission. Simple fairness requires that defendantbepermitted to introduce her copy of the agreement, just as simple fairness requires that plaintiff be permitted to introduce his copy of the listing agreement. The question then becomes one of whether plaintiff, who claims to have thrown away her copy of the listing agreementbecause itwas virtually destroyed by vandals, should be permitted to establish the contents of this document anyway. The law permits her to do so. The applicable rule of evidence to prove the contents of an original or copywhere it has been lost or destroyed, Rule 1004(1),M.R.Evid., provides: "Theoriginal is not required, and other evidence of the contentsof a writing, recording, or photograph is admissible if: 

# ..

# . (1) All originals are lost or have been destroyed, unless the proponent 

### -- lost or destroyed 

### --- them in bad faith;



# ..." (Emphasisadded.) The defendant's copy of the listing agreementwas an original within themeaning of the rules of evidence. Rule 1001(3),M.R.Evid., defines original as follows: "(3) An original of a writing or a recording is thewriting or recording itself, of any counterpart intended to have the same effect by a person executing or issuing it

# ..." The evidence establishes that the listing agreements were form listings, with a carbon in between the top and the second copy. With the exception of theword "nonexclusive" being written on defendant's copy by the plaintiff (according to the plaintiff's testimony)after she received her copy, the listing agreementwas filled out all in one motion. The defendant's copywas also an original. Under Rule 1004(1), supra, the defendant could prove the contents of her copy of the listing agreementby her testimony and by Van Lueschene,who testified that he saw plaintiffwrite "nonexclusive"on the defendant's copy. The only question for the trial court to determine under this rule

waswhether defendant threw away her copy in bad faith after she claimeditwasmade worthless by the vandals. If the court ruled she did it in bad faith, itwould rule that she could not introduce throughher testimony and that of Van Lueschene, evidence of the contents of this listing agreement. But if it ruled that shewas in good faithwhen she threw away the listing agreement, evidence of the contents of her listingwould be permitted. In any event, this would be a question of fact for the trial court to first determine. If the trial court ruled defendantwas not in bad faith in throwing away her copy of the listing agreement, she could testify, and so could witnessVan Lueschene, to its contents-- thatplaintiff wrote theword "nonexclusive"on her copy. The trial court was not, of course,required to believe either the defendant orVan Lueschene. But if he did, itwould be a devastating admission againstplaintiff's interest, for it would flatly contradicthis claim that he had an "exclusive" listing. Nonetheless, once evidence of the contents of both these writings were in evidence, a flat contradiction arose. In this situation, the trial court undoubtedly would have the right to hear evidence from both sides as to the circumstances surrounding the execution of the listing agreements. The trial courtwould well decideeither way depending onwhose version of the facts itbelieved. In any event, the par01 evidence rulewould not prevent introduction of evidence to explain the contradiction existing between the two listing agreements. Both of them could not be right. For the reasons stated, Iwould vacate the judgment and remand for a new trial. 

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