dissenting:
I dissent to the majority’s decision on Issues 1 and 2. The terms of the listing agreement entitle Ellingson to a commission upon exchange of the contract property. The pertinent part of the agreement reads: “In the event ... of exchange or conveyance of said property, . . . during the term of your exclusive employment... I agree to pay . . .”. Thus, the outcome of the commission issue depends on whether or not an exchange has occurred. Section 30-11-112, MCA, defines an exchange as follows:
*369“Exchange is a contract by which the parties mutually give or agree to give one thing for another, neither thing nor both things being money only.”
Here the Baltrusches conveyed their vendee’s or equitable interest in the property to McAfees. In exchange the McAfees released them from substantial monetary payments, due currently and in the future, under the contract. McAfees obtained the property back and Baltrusches obtained the release. Under Montana law, an exchange occurred. They gave one thing for another, neither thing being money. The exchange triggered the commission provided for by the agreement.
The terms of the listing agreement are clear. The signed listing agreement was the final contract between the parties. There is no ambiguity as to its terms. The Baltrusches are experienced businessmen. The admission of parol evidence to determine the intent of the parties violates the parol evidence rule. Any agreement reduced to writing is the final agreement of the parties and if not ambiguous should stand.
As to the second issue, Baltrusches’ counterclaim should have been dismissed. Ellingson did not owe a fiduciary duty as broker to affirmatively disclose to Baltrusches that a commission would be due in event of an exchange or conveyance back to McAfees. The listing agreement already provided for the commission.
A fiduciary duty between broker and seller is breached when the seller is fooled or deceived by the contract or does not understand its content. Nardi v. Smalley (Mont. 1982), 197 Mont. 321, 643 P.2d 228, 39 St.Rep. 606. None of these elements appear here. With the myriad of real estate transactions involving pecuniary sales or exchanges including not only real property but personal and mixed property, and all of the various combinations thereof, an expansion of the fiduciary duty to affirmatively disclose when it is clear in the parties’ written agreement, opens the door to extensive uncertainty of the law. The District Court was correct in dismissing Baltrusches’ counterclaim.