(dissenting).
I must dissent. Numerous authorities hold that a husband is liable on a contract with a real estate broker for the sale of property jointly owned, even though he is later unable to persuade his wife to join in the sale. It might seem quite logical on first thought to apply the rule in reverse, as the majority has done in this case, and hold the wife liable on her contract with the real estate broker when it develops that she is unable to persuade her husband to join in the sale.
However, I am reluctant to join in a reverse application of the rule for several reasons. The husband was generally recognized at common law as being the manager of the family property.1 He is presumed to bfe capable of safeguarding the family interests. Therefore, it does not greatly disturb one’s sense of justice to hold him liable to the broker on his contract to sell jointly owned property even though he is later unable to persuade his wife to sign the conveyance. The underlying problem in this type of case was touched upon cursorily in Campbell v. Arthur H. Campbell & Co.2 where the court said:
Such right of the broker against the husband cannot be defeated by the refusal of the wife to join in a conveyance. We think that in the great majority of cases the husband attends to the business for the family, and we think the broker has a right to rely on the husband’s assumption of authority and his implied repre*145sentation that the wife will join in the necessary title papers.
Oil the other hand, the wife has not generally been recognized in law as being the manager of the family property. Generally her duties are in the household and with the children, and considerably removed from the affairs of the business world. For .this reason she is ordinarily not as well suited to negotiate a contract with a real estate broker as the husband. Such contracts involve the negotiation and establishment of at least three important items, namely: the sales price of the property, the amount of commission the broker is to receive and the term of the listing.
Here the contract called for a broker’s commission of 10 percent on a sales price of $10,000. The sales price established was such that a purchaser was obtained within four days. When the husband came home from his distant employment it was to learn that the family-home had been sold by his wife on terms with which he could not agree.
The fact that only the wife is being held liable on the broker’s contract does not establish consistency and fairness in the application of the rule. The obligation and burden of paying the broker’s commission must be borne by the husband as well as the wife.
Instances where the wife has been held liable on a real estate broker’s contract where the husband refused to join in the sale are rare. The Alaska decision of Pasley v. Barber3 is cited in an annotation in 10 A.L.R.3rd 66S, 674 as authority for holding the wife liable in such instances. Pasley held that the real estate broker, who was also the wife’s business advisor, knew or should have known that the property owned jointly by her with her husband Was involved in divorce proceedings and that very likely she would be unable to procure his cooperation in executing the deed. It is significant that this court stated in Pasley :4
Where the husband employing the broker owned the property in joint tenancy with his wife, it has been held that the broker was entitled to rely on the husband’s assumption of authority and recover his commission from the husband, unless he had actual knowledge that the wife was a joint ozvner and had not obtained a listing from her. (Emphasis supplied.)5
The only authority cited in the 10 A.L.R. 3rd annotation which is available for study is Portis v. Thrash.6 This decision holds the wife liable on the real estate broker’s contract where the husband refused to join in the sale. The decision relies for authority on the previous Arkansas decision of Reynolds v. Ashabranner7 where the husband was held liable on his contract with the real estate broker when the wife refused to join. The propriety of applying the rule to the wife was not discussed in Portis.8
The rule that the wife should be held liable to the broker in these situations is not supported by numerical authority. In my opinion Pasley v. Barber is authority for the proposition that if the broker had actual knowledge that the husband was a joint owner and had not obtained a listing from him, the broker’s contract could not be enforced against either owner.
There is an additional reason why I am reluctant to join in the majority decision. AS 08.88.341 states in part:
All real estate listings must be in writing and must be signed by the seller or by an agent of the seller.
*146Although it has not been urged by appellant, it appears likely that the legislature intended that the word “seller” include both the husband and the wife where they were joint owners. Since we have held that the wife was not the husband’s agent in this case, it would follow that the broker’s contract would not be enforceable against either spouse if the above interpretation is correct. This result would be consistent with a similar holding based on Pasley, since it is undisputed that the broker in this case was fully aware of the fact that the husband and wife were joint owners.
In my opinion, neither of the appellants should be held liable on the real estate broker’s contract involved herein.
. In some states, particularly community property states, the husband is recognized by statute as being the manager of the family property. See Cal.Civ.Code §§ 161a, 172 and 172a.
. 155 Tenn. 515, 296 S.W. 9 (1927).
. 368 P.2d 549 (1962).
. 368 P.2d 549, 551.
. Gray v. Blake, 131 Colo. 560, 283 P.2d 1078 (1955) was cited as authority for this statement.
. 216 Ark. 946, 229 S.W.2d 127 (1950).
. 212 Ark. 718, 207 S.W.2d 304 (1948).
. In Pepper v. Chatel, 185 A.2d 508 (D.C.Mun.App.1962) the wife was held liable, but the facts are distinguishable. She had entered into the contract with the broker in her maiden name for the sale of property which she had inherited. The broker did not know that she was married until some time after the contract had been entered into.