dissenting:
I cannot agree that plaintiff is entitled to recover a commission for the sale of this property under the terms of this contract, and it is this contract upon which his cause of action is based. A count predicated upon fraud was voluntarily dismissed by plaintiff, and no quantum meruit claim was ever made. Consequently, any right to recover under this listing agreement must be predicated on the occurrence of one of three events: (1) the sale of the property within 90 days commencing June 14, 1967; (2) the production by plaintiff of a purchaser “ready, willing and able” to buy the property for $75,000, or such lesser sum as might be acceptable to defendant, within that 90-day period; (3) a sale of the property to any person, directly or indirectly, whom plaintiff may have interested in the property, within 6 months following expiration of the exclusive listing period. No amount of discussion by the majority concerning either Dr. San tare’s possession of the property or any “causal connection” to a sale can obscure the fact that none of these contractual conditions was met. Nowhere is it suggested that the property was sold prior to September 12, 1967, or that defendant and Dr. Santare reached any agreement during the protracted negotiations that summer; Dr. Santare was not “ready, willing and able” to purchase upon terms to which the defendant would consent. Serious differences separated their bargaining positions during that entire period, and the leasehold arrangement executed in September reflected Dr. Santare’s unwillingness to consúmate a sale at that time.
It is similarly undisputed that no sale of the property was executed during the 6 months after September 12, 1967, the expiration date of the listing agreement. Dr. Santare did not so obligate himself through exercise of the option until September 18, 1968. The suggestion by the majority that the lease to Dr. Santare somehow “made it impossible for the plaintiff to find any other purchaser under the terms of the brokerage contract” overlooks the precise terms of that agreement. Had plaintiff produced a purchaser willing to pay $75,000 for the property prior to September 12, 1967, it seems clear that he would be entitled to a commission regardless of whether a sale were, in fact, consummated.
It is not uncommon for brokers to show property to persons who are not then disposed to buy but who ultimately purchase after the broker has ceased active solicitation. Whether commissions are due upon those sales varies with the elapsed times and differing circumstances. The contract here was designated to eliminate such uncertainties. It protected the broker in the case of a sale within 6 months from the expiration date of the agreement, but not thereafter. The majority neglects to mention that the 6-months limitation was the plaintiff’s own doing; had he desired more extended protection of his interests, he could have so drafted the brokerage contract which he chose to use.
Contrary to what seems to me to be implied in the majority opinion, I find in the evidence no hint of a scheme to deprive plaintiff of a commission. To the contrary, it is clear that Dr. Santare was seriously concerned about the possibility of water problems in the basement of the house. The lease and option to buy enabled him to determine the effectiveness of the remedial measures taken before he obligated himself to buy, a commitment he was unwilling to make until satisfied that those problems had been eliminated.
I would affirm the judgment of the appellate court.
WARD and RYAN, JJ., join in this dissent.