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 Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Gerald J. Neely, Billings, Montana 

For Respondent: 

Berger, Anderson, Sinclair & Plurphy, Billings, Montana 

Filed: 

Submitted on briefs: December 17, 1980 

Decided :lT!R 26 1901 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

This is an action by a real estate broker to collect a 

commission under a written contract granting him the exclusive 

right to sell the property. During the term of 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 

Billie Buechler, the owner of the Red Rooster Bar in Shepherd, 

Montana. On July 5, 1977 the 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 at 841% interest. The written agreement 

provided, among other things: 

"THIS LISTING IS AN EXCLUSIVE LISTING and you 

hereby are granted the absolute, sole and exclusive right to sell or exchange the said 

described property. In the event of any sale by 

me or any other person, or of 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 

actually been 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 suit on the contract. 

The broker proceeded to advertise the property in the 

Billings Gazette, 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 sell 
the property. 

Thereafter on September 15, 1977, the owner sent a letter 

to the broker as follows: 

"Dear Rad: 

"Having decided to keep the bar, I wish to take 

it off the market and cancel my listing. 

"If in the future I want to list it I will give 

you first chance. 

"Yours truly, 

"Billie Buechler 

"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 his complaint to collect his 10% 

commission, interest from the date of 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 efforts of 

the broker. 

Pretrial discovery consisted of interrogatories and 

answers of the broker and owner, depositions of the broker, his 

father who was associated in business with him, and the owner. 

The case came on for trial on March 26, 1980 before the 

District Court sitting without a jury. Admitted in evidence 

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 also moved for 

admission in evidence of the deposition of the owner excepting therefrom 

certain parts which the broker contended were par01 evidence and 

inadmissible; the owner sought admission in evidence of her 
entire deposition; and the court reserved a ruling on the 

admissibility of those parts objected to and admitted the rest. 

At the trial the broker, the owner and a Mr. VanLueschene 

testified in person, albeit briefly. 

The District Court entered findings of fact, conclusions 

of law and judgment in favor of the owner. The substance of the 

court's findings was that the written agreement granting the 

broker the exclusive right to sell the bar was entered into by 

the broker and owner on July 5, 1977; that the owner did not 

intend to grant the broker the exclusive right to sell the bar as 

she had at least two other listings with other real estate agencies on the same property in effect on July 5, 1977; that no consideration flowed from the broker to the owner other than their 

mutual contemplation that the broker would attempt to attract 

prospective purchasers for his own benefit; that the 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 or to buy the 

property. 

From these findings the 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; that the agreement 

was not an exclusive agreement to sell the owner's property; and 

that the owner acted in good faith in terminating the written 

contract and did not perpetrate a fraud on the broker. Judgment 

for the owner was entered accordingly. 

We frame the issues on appeal in this manner: 

(1) Did the written contract between the broker and owner 

lack consideration and mutuality? 

(2) Was there sufficient evidence to support the finding 

that the written contract was 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 written 
contract during its term without liability for the commission? 

Lack of consideration was 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 regularly held that a broker's expenditure of time and money 

to find a purchaser is sufficient consideration for the promise 

to pay a commission and upon such expenditure of time and money, 

the agreement becomes bilateral and binding upon the owner. 

Kimmel v. Skelly (1900), 130 Cal. 555, 62 P. 1067; Garrett v. 

Richardson (1962), 149 Colo. 449, 369 P.2d 566. Here the owner 

employed the broker on a commission basis and the broker's expenditure of his time and $1,120 of his money 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 obligation was created by the efforts of 

the broker to find a purchaser for the property on the owner's 

terms and the broker's expenditure of time and money in this 

effort. Harris v. McPherson (1922), 97 Conn. 164, 115 A. 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 listings to other agencies which were still in effect, 

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 after her 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, all this evidence was objected to 

under the parol evidence rule and the objection was taken under 

advisement by the court. 

The parol evidence rule generally provides that the terms 

of a written agreement cannot be altered or contradicted by oral 

testimony subject to certain well-recognized exceptions. See 

section 28-2-905, MCA. The written contract supersedes all oral 

negotiations or stipulations which preceded or accompanied its 

execution. Section 28-2-904, MCA. In accord, Danielson & Ward 

v. Danielson & Neu (1977), 172 Mont. 55, 560 P.2d 893; Batey Land 

& Livestock Co. v. Nixon (1977), 172 Mont. 99, 560 P.2d 1334; 

Larson v. Burnett (1972), 158 Mont. 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, or omission forms 

part of a transaction which is itself the fact 

in dispute or evidence of that fact, such 

declaration, act, or omission 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, 133 P. 

687. It has nothing to do with the parol evidence rule which is 

a rule of substantive law. 

The owner also asserts that Rule 106 of the Montana Rules 

of Evidence and Rule 32(a)(4), M.R.Civ.P., render this parol evidence admissible. These are rules on admissibility of evidence. 

Par01 evidence cannot be introduced because as a matter of 

substantive law the written agreement constitutes the entire 

transaction between 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 construction of 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 position of those whose language he is to interpret." 

This statute relates to construct ion and interpretation of written instruments but is irrelevant here. The language of the 

contract is plain and unambiguous. Under such circumstances, the 

language alone controls and there is nothing for the Court to 

interpret or construe. Section 28-3-401, MCA and sect ion 

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 

give him such a listing. None support the admissibility of such 

parol evidence in this case. 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), 141 Mont. 376, 378 

P. 2d 235, parol evidence was admitted, not to vary or alter the 

terms of a written contract, but to show that a condition precedent 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 to Written Listing 

Agreement of Real Estate Broker, 38 ALR2d 542. 

Here the parol evidence directly contradicts the plain and 

unambiguous language of the written instrument; it does not fall 

within any recognized exception permitting its admission in 

evidence, and is clearly inadmissible. Although the District 

Court did not rule on the broker's objection to its admission in 
evidence, its findings and conclusions clearly reflect that the 

court based them on this inadmissible evidence. This was error. 

The last issue concerns whether the owner had the right 

to cancel the written listing agreement during its term and 

thereby deny the broker a commission. The written agreement 

plainly gave 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 or transferred the property, the owner 

would pay the broker the commission; and finally provided 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 at any time and denied the broker any commission. 

As we 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), 87 Mont. 382, 288 P. 1021; McDonald & Co. v. 

Fishtail Creek Ranch (1977), 175 Mont. 53, 572 P.2d 195; Anno: 

88 ALR2d 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 this case 

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 conclusions 
that the written agreement lacked consideration and mutuality 

and that the agreement was 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 the price 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 5/27/81 
Mr. Justice Daniel J. Shea dissenting: 

If compelled to make a choice, I would affirm the 

judgment. The majority is clearly in error by invoking the 

parol evidence rule to prevent the defendant from proving that 

she had an agreement with the plaintiff that the real estate 

listing contract was nonexclusive. But even though I believe 

the majority is in error, this case was so poorly tried, and 

the findings and conclusions are so inadequate that I cannot 

in good conscience vote to affirm the judgment. It would be 

an injustice to do so. Justice requires that the judgment be 

vacated, and that the case be tried again. 

REASONS WHY THE JUDGMENT MUST BE VACATED AND THE CASE TRIED AGAIN 

This case took no more 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 exception was that plaintiff's attorney reserved an 

objection to a part of the defendant's deposition testimony on 

her claim that she had a listing agreement with plaintiff with 

the word "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 interrogatories and their answers be admitted in 

evidence. 

The record does not disclose the answer, but I surmise 

that the parties were pressured into speeding up the trial-- 

but it was hurried up so much that it was hardly a trial at all. 

The trial transcript of testimony covers a total of sixteen 

pages. The plaintiff did not testify to the circumstances 

surrounding the execution of the listing agreement. He only 
testified to the amount of work he put in trying to sell 

the defendant's property after he had obtained the listing. 

Nothing in the record discloses why 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 case was not much longer. Defendant was 

called to the witness stand and her counsel asked her if 

she understood that "your deposition has 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 effect when she 

signed the listing agreement with plaintiff on July 5, and 

this listing agreement was introduced into evidence with no 

objection from the plaintiff. She then testified that she 

refused to sign an exclusive listing agreement with the 

plaintiff. 

She testified that Mr. Van Lueschene was present when 

she signed the listing agreement with 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 

she had with the plaintiff, and she again explained how her 

copy was destroyed as a result of vandalism. This crossexamination covers one-and-a-half pages 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 the 

circumstances 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 (direct and cross) 

covers five pages of the trial transcript. 

In rebuttal, plaintiff called the defendant as an adverse 

witness. She was asked if she agreed with 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 impeach her 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 submitted proposed 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 inadequateland I could not put the stamp 

of approval on a judgment based 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 or more listing agreements in effect when the listing 

agreement was signed on July 5, 1977. In fact, there is no 

finding which covers the main issue of this appeal--whether 

parol evidence of the claimed "nonexclusive" listing agreement 

should be admitted. 

The only finding which remotely bears on this issue, 

finding no. 3 states: 
"That the contract was not intended by the 

defendant to be an exclusive right of the 

plaintiff to sell her property; that she had 

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 there was a good evidentiary record in existence, I 

would remand only for further findings. But here, because 

there was hardly a trial at all, I would order a new trial. 

I add that neither the parties nor the trial court have 

pointed out a glaring discrepancy as to who was present on 

July 5, 1977, when the listing agreement was signed. In 

their depositions, the plaintiff, Rad Lee Payne, and his 

father, Carl Payne, testified that both of them were with 

the defendant when they discussed the listing agreement and 

when it was signed. Both of them also testified that Mr. 

Van Lueschene was not present on July 5. On the other hand, 

the defendant and Van Lueschene testified that only the 

defendant, the plaintiff, and Van Lueschene were present on 

July 5 when the listing agreement was 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 of whether 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 a 
discussion 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 to put this case in a procedural 

perspective as to how it was tried. The procedural 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 listed with anyone else at the time she 

signed their listing agreement, even though they knew she had 

previously had listing agreements in effect with 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 of Van Lueschene on their version of the signing of the 

listing agreement. See Rule 32(a) (4), M.R.Civ.P. But aside 

from this, the majority has missed the point in applying the 

par01 evidence rule to bar the evidence. The evidence clearly 
falls within the exceptions to the parol evidence rule 

(set out in the statute itself, section 28-2-905, MCA), 

but unfortunately, the majority opinion does not discuss 

the exceptions other than to state that the evidence "does 

not fall within any recognized exception permitting its 

admission in evidence . . ." The exceptions, however, clearly 

apply to this case. 

ADDITIONAL FACTS NOT MENTIONED IN THE MAJORITY OPINION 

I proceed next to an expansion of the facts beyond those 

stated in the majority opinion, because it must 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 on my exhibit, or on my contract which 

was destroyed when my house was broken into, 

I lost all my bank statements, lost all my 

records from my bar, I lost all my bank 

statements from last year, everything that 

I had, because when they broke into my bar 

or into my house, they poured ketchup, mustard, 

molasses, anything they could find in my house, 

all over everything, I mean there was no way that 

I could salvage anything . . ." 

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, 'we will 

make an exception.' So on the top of my listing 

he wrote 'non-exclusive.' Well, I have nothing 

to prove that he wrote this, except that people - - 

that were sitting there listening to me say 

this. " 

The basis of the plaintiff's objection was 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 repeated what she said in her deposition. She 

said that vandals had broken into her house and, among other 

things, had poured ketchup, mustard and molasses over many 

of her papers, including the listing agreement, and that the 

papers had been ruined. In explaining how she threw out many 

of the items she said: 

"I didn't even realize what I was throwing 

out, because there was so much stuff there 

that I couldn't salvage. They had poured 

molasses and ketchup and everything out of 

my cupboards all over my 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, is whether defendant and Van Lueschene were 

entitled to testify that plaintiff had written "nonexclusive" 

on her copy of the listing agreement. I have no doubt that 

such testimony is admissible. 

Contrary to the implications of the majority opinion, we 

are not dealing with only the plaintiff'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 the plaintiff'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 evidence was 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 or 
destroyed document is permitted under Rule 1004 (l), M.R.Evid. 

The parol evidence rule certainly would not bar evidence that 

defendant's copy contained the word "nonexclusive" in the 

plaintiff's handwriting. Once this evidence was admitted, 

the parol evidence rule would not bar the evidence needed to 

explain the patent contradiction in the listing agreements. 

Both versions cannot be right. 

The logic of the majority opinion means that the outcome 

would always have to be controlled by the copy of the 

contract held by the broker. If a broker actually wrote 

different terms on the seller's copy of the listing agreement, 

he would never have to worry 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 findings had 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 foundation of a lost or destroyed 

document), not only created an ambiguity in need of explanation, 

they created a patent contradiction for which the explanation 

was vital. Because the actual copy of defendant's listing 

agreement was not produced, the question becomes one of credibility: 

Either the trial court believes plaintiff and his father that 

neither of them wrote "nonexclusive" on defendant's copy of 

the listing agreement, or the trial court believes the defendant 

and Van Lueschene,that plaintiff did write "nonexclusive" on 

defendant's copy of the listing agreement. 

Second, assuming that "nonexclusive" was never written 

on defendant's copy of the listing agreement, defendant still 

could claim on the basis of illegality, invalidity, or fraud 
(section 28-2-905, MCA) that the listing was nonexclusive. 

If the defendant told plaintiff that she dici 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 listing because 

defendant had no right to give him one. In such event, the 

exclusive listing would be invalid (an exception 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, the majority 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 she did not intend to give 

the broker an exclusive listins; that she 

had previously given listings tb other agencies 

which were still in effect, 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 Mr. Van 

Lueschene who testified that 'nonexclusive' was 

written on her copy of the agreement. Her copy 

of the written agreement was 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 andLexisting listing -- 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 

(section 28-2-905, MCA), and never to the exceptions contained 
in the same statute. They state: "The parol evidence 

rule generally provides that the terms of a written agreement cannot be altered or contradicted by oral testimony 

subject - to certain well-recognized exceptions. See section 

28-2-905, MCA." (Emphasis added.) After summarizing the 

evidence that apparently violates the parol evidence rule 

(previously discussed), and never setting out the exceptions 

to the parol evidence rule, the opinion states: "Here the 

parol evidence directly contradicts the plain and unambiguous 

language of the written instrument; ---- it does not fall within 

any recognized exception permitting its admission - in evidence, 

-- and is clearly inadmissible . . . " (Emphasis added. ) 

I find such analysis and rationale to be seriously 

defective. 

THE PAROL EVIDENCE RULE AND ITS APPLICATION HERE 

All of the evidence (excluded by the majority opinion) 

is plainly admissible by 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 agreement have been 

reduced to writing by the parties, it is to be 

considered as containing all those terms. 

Therefore, there can be 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 is put in issue by the pleadings; 

" (b) when the validity -- of the agreement 

---- is the fact in dispute. 

"(2) This section does 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'. . . includes deeds . . . as well as contracts between parties." (Emphasis added,) 

The validity of the agreement is "the fact in dispute" 

and therefore falls within the exception listed in section 
28-2-905(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 the plaintiff broker would be invalid as an "exclusive" 

listing. Applied here, it would mean that under the facts 

here, the plaintiff could not collect a commission. 

Further, although the pleadings were not so framed, the 

clear intent of the defendant was to show that the plaintiff 

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 evidence would be admissible under section 

28-2-905(2). If defendant prevailed (that is, if the trial 

court believed plaintiff and the witness Van Lueschene), the 

plaintiff broker would be holding an - illegal exclusive listing 

agreement, and he could not recover a commission based on the 

facts of 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 doubt he would 

be guilty of fraud against the defendant by then trying to 

collect a commission based 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). 

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Under all of the circumstances here, admitting the 

evidence would mean that the trial court was faced with a 

question of fact as to who to believe. If he believed 

plaintiff and his father, he could still order that the 

commission be paid. But if he believed the defendant and 

the witness Van Lueschene, he could rule (as he did here) 

that the plaintiff held only a "nonexclusive" listing and 

was therefore not entitled to collect a commission under the 

facts of the case. 

I have set forth the reasons why I cannot affirm the 

District Court judgment, and I have also set forth the reasons 

why I cannot abide by the majority opinion. One more 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 the plaintiff's handwriting, 

that defendant would still be 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. I have no doubt that it could, for 

her copy was every bit as much an original as was the 

plaintiff's copy. Further, if her copy contained the word 

"nonexclusive" written on it, in plaintiff's handwriting, 

it would defeat plaintiff's right to recover the real estate 

commission. Simple fairness requires that defendant be 
permitted 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 agreement because it was 

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 copy where it has been lost or destroyed, 

Rule 1004(1), M.R.Evid., provides: 

"The original is not required, and other evidence 

of the contents of 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; . . . " (Emphasis added.) 

The defendant's copy of the listing agreement was an 

original within the meaning 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 the writing 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 the word "nonexclusive" 

being written on defendant's copy by the plaintiff (according 

to the plaintiff's testimony) after she received her copy, 

the listing agreement was filled out all in one motion. The 

defendant's copy was also an original. 

Under Rule 1004(1), supra, the defendant could prove the 

contents of her copy of the listing agreement by her testimony 

and by Van Lueschene, who testified that he saw plaintiff 
write "nonexclusive" on the defendant's copy. The only 

question for the trial court to determine under this rule 

was whether defendant threw away her copy in bad faith 

after she claimedit was made worthless by the vandals. If 

the court ruled she did it in bad faith, it would rule that 

she could not introduce through her testimony and that of 

Van Lueschene, evidence of the contents of this listing 

agreement. But if it ruled that she was in good faith when 

she threw away the listing agreement, evidence of the contents 

of her listing would be permitted. In any event, this would 

be a question of fact for the trial court to first determine. 

If the trial court ruled defendant was not in bad faith 

in throwing away her copy of the listing agreement, she could 

testify, and so could witness Van Lueschene, to its contents-- 

that plaintiff wrote the word "nonexclusive" on her copy. 

The trial court was not, of course, required to believe either 

the defendant or Van Lueschene. But if he did, it would be 

a devastating admission against plaintiff's interest, for it 

would flatly contradict his 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 court would well decide either way depending on whose 

version of the facts it believed. In any event, the par01 

evidence rule would 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, I would vacate the judgment and 

remand for a new trial. 

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