Foundation Securities Corp. v. Pittard

George Rose Smith, Justice. This action was brought by the appellee Pittard to recover a $15,000 real estate agent’s commission for having sold a tract of land in Little Rock for the appellants, Foundation Securities Corporation and a companion company. The defendants denied liability on the ground that Pittard’s right to a commission was contingent upon the actual closing of the sale — an event which admittedly never took place. The trial court granted the plaintiff’s motion for summary judgment upon the pleadings and affidavits on file. For reversal the appellants contend that there are questions of fact about whether the sale could have been closed without the consent of the Little Rock Housing Authority. The facts, as might be expected in view of the summary judgment, are for the most part undisputed. Foundation Securities orally employed Pittard to find a purchaser for the land. Pittard succeeded in interesting Gus B. Walton in the property at the stipulated price of $265,000. On- March 23, 1965, two contracts were signed. First, Walton paid Foundation Securities $5,000 for a written option to purchase the land. Second, Foundation Securities signed and delivered to Pittard the two-sentence contract now sued upon: In consideration of services rendered by Harry A. Pittard in the sale of [the land] the undersigned agrees to pay Mr. Pittard a commission of Fifteen Thousand Dollars ($15,000.00). This commission to be payable upon closing of the sale to Grus B. Walton. Both sides agree that the insertion of the specific requirement that the sale be closed takes the case out of the usual rule that a real estate agent earns his commission merely by producing a person ready, willing, and able to buy the property. Pittard insists, however, that the sellers arbitrarily refused to close the sale and accept Walton’s money, thereby waiving the condition in Pittard’s contract. Pinkerton v. Hudson, 87 Ark. 506, 113 S. W. 35 (1908). There is, however, another condition to be considered, which brings us to the crux of the case. According to the record, the sale from Foundation Securities to Walton may have been contingent upon the approval of the Housing Authority, from which Foundation Securities had acquired the property. Two documents in the record indicate the necessity for the Housing Authority’s consent: One, Walton’s option recited that the sellers would obtain from the Housing Authority such permissions, consents, and .approvals as might be required to enable the sellers to consummate the transaction. Two, the counter-affidavit of Lyle Bettis, an officer of Foundation Securities, states that Pittard’s commission was upon condition that the sale to Walton be closed, and goes on to explain: “The reason for the condition . . . being that the property could not be sold without the approval of the Little Rock Housing Authority and could not be sold for a profit.” At the oral argument Pittard’s attorney insisted that the quoted language in the Bettis affidavit should be disregarded, because it states merely a reason rather than a fact. A fact, however, may be stated in the form of a reason, as when we say: “The cause of action abated upon the plaintiff’s death, the reason being that the plaintiff had only a life estate in the land.” Moreover, on motion for summary judgment the testimony must be viewed in the light most favorable to the side resisting the motion; so any uncertainty must be resolved in favor of the appellants. Van Dalsen v. Inman, 238 Ark. 237, 379 S. W. 2d 261 (1964). We conclude, therefore, that there is a question of fact whether the Housing Authority’s approval was essential to the consummation of the sale. Even so, Pittard insists that the appellants cannot shield themselves behind the Housing Authority’s nonconsent to the sale, because, Pittard argues, that obstacle was eliminated in a suit brought by Walton for specific performance of his option to buy. This particular point is pivotal. The record shows that Walton filed suit against the sellers for specific performance of the contract. The Housing Authority was not a party to the case. The sellers’ answer interposed several defenses, one being that the Housing Authority had not approved Walton’s option to purchase and had advised the parties that it would not approve any transfer or conveyance of the property prior to the completion of certain improvements that had not then been made. The evidence in the earlier case was not brought into the present record. The decree made no findings of fact whatever, merely reciting that Walton was entitled to a decree directing the sellers to specifically perform their contract. The sellers gave notice of appeal, but Walton died before the appeal was perfected. According to the Bettis affidavit, after Walton’s death “the heirs were unwilling to complete the sale, the Housing Authority never gave permission for the sale at the purchase price of $265,000.00, and the sale was never completed to Gus Walton or his heirs.” Apparently the heirs and the sellers abandoned both the suit and the sale. Upon this point Pittard argues that when Walton sued for specific performance “he irrevocably elected to pursue that remedy and irrevocably abandoned his option (in the contract) to call the contract at an end and to secure his money back. Bigger v. Glass, 226 Ark. 466, 209 S. W. 2d 641 (1956); Belding v. Whittington, 154 Ark. 561, 243 S. W. 808, 26 A. L. R. 107 (1922). So, when Gus Walton filed suit for specific performance, he gave up his right to call the contract at an end. Since he did not have that right, his heirs, who stood in his place, possessed no greater rights than he did.” The appellee, we think, misconstrues the scope of the doctrine of election of remedies, discussed in the two cases cited. True, when a plaintiff sues for specific performance he cannot, over the defendant’s objection, dismiss that case and bring suit for damages instead. It does not follow, however, as the appellee argues, that the mere filing of the first suit irrevocably commits the plaintiff to purchasing the property — so much so that he cannot change his mind and drop the whole transaction. To the contrary, it is plain enough that, just as in any contested lawsuit, the plaintiff is always at liberty to abandon the pursuit of his cause of action. In fact, that point was clearly recognized in the Belding case, where we said that an election, once made, cannot be withdrawn “without due consent.” Hence, with the defendant’s consent, the plaintiff can change from one remedy to the other. It is even plainer that he can withdraw from the litigation altogether if he chooses to do so, with or without his adversary’s consent. As we have seen, the Housing Authority’s approval of the sale may have been required. Upon that point, to say the least, a question of fact is involved. The plaintiff, in asking for a summary judgment in the court below, had the burden of eliminating that question of fact from the case. “A motion for a summary judgment is an extreme remedy and the burden of demonstrating the nonexistence of a genuine fact issue is upon the party moving for the summary judgment.” Deltic Farm & Timber Co. v. Manning, 239 Ark. 264, 389 S. W. 2d 435 (1965). Here the appellee has not met that burden. Even after the entry of the decree in the earlier case Walton might have become convinced that the chancellor’s decision had been wrong and would be reversed on appeal. In that situation he would certainly have been at liberty to drop the suit and surrender whatever rights he had under the option contract. Upon Walton’s death his heirs stepped into his place and may have acted in the manner we have suggested. Furthermore, the Housing Authority was not a party to that case; so if its consent to the sale was actually required, a contrary finding by the court would not have been binding upon the Authority. Upon the record as a whole we are convinced that the earlier decree, which was abandoned by the parties, does not satisfy Pittard’s burden of showing that the necessity for the Authority’s consent to the sale has been eliminated from the case. Reversed and remanded for further proceedings. Harris, C. J., and Holt, J., dissent.