(dissenting).
I dissent from the majority opinion. I have no quarrel with the legal principles enunciated in the majority opinion as to the duties and obligations of real estate agents to their clients. If this was such a case I would join the majority opinion. The problem with this case is that both the trial court and the majority opinion misstate the evidence and the facts developed in the trial. First and foremost, this was not a real estate listing contract between Handys and Garmaker. Handys had purchased the subject property in June of 1976 for $1,212,-000. In November of 1976, Garmaker called Handys asking if they would be interested in selling the property for the sum of $1,425,000. Handys jumped at the opportunity to make a $213,000 profit in six months time. As a result of this phone conversation, Handys and Garmaker entered into the agreement quoted in the majority opinion. In this agreement the Handys agreed to pay Garmaker a commission of $24,870.50 for selling the subject property to James R. Lund. This was not a real estate listing agreement, but a simple contract between Handys and Garmaker who happened to be a real estate agent, and under Minnesota law was required to be a licensed broker in order to collect a commission. Also soon after this Handys executed an exclusive listing agreement with Real Estate Dynamics represented by Lee Bake-well.1 The listing agreement specifically excluded the possible sale to Lund and to *174clients of another realtor friend of the Handys. The listing agreement to Bake-well excluded only the sale to Lund and not to any other client of Garmakers, whereas, the exclusion to the other realtor obviously listed any sales that he would make, again indicating that Handys recognized that they had a different type of contract with Gar-maker. Of even greater significance is the fact that Bakewell produced a purchaser willing to pay more money than the agreement provided by Garmaker with Lund, but Handys rejected it because they liked the terms of Garmaker’s arrangement better. At the time Lund signed the earnest money agreement he fully intended to purchase the property. Subsequently, circumstances dictated that he might forfeit his earnest money and drop the sale. It is at this point that Garmaker made an arrangement with Lund to contribute $7,000 of his commission to Lund if he would go through with the sale so that Garmaker would have a chance to resell it to another group that he would form. There can be no question that under these facts Handys knew that Lund was buying the property originally for a set price. It would have been no different to their judgment and decision if any other person was named as a purchaser or if Garmaker himself was named as a purchaser. Their decision was to sell for $1,425,000. Further the evidence is undisputed that pri- or to the closing Lund told the Handys that he was receiving $7,000 from Garmaker as part of the closing of the transaction. Further, it is undisputed that various people, other than Lund, visited the property and examined the property for purposes of purchasing and these visits were known to the Handys prior to the closing. Further, at the closing, which lasted some six hours, and included numerous people, every person present, except Handys, testified that they knew Lund was not buying the property and that Garmaker was purchasing the property and had to arrange his own financing. The majority opinion is premised on three events. (1) that there was a general real estate listing contract; (2) that Handys didn’t know about the payment to Lund, and (3) that Handys didn’t realize at the closing that Garmaker was the purchaser. The first two of these events are undisputed in the record and are directly opposite of the view taken by the trial court and the majority opinion. The third factor is disputed only by Handys. Thus, we have a situation where a party who happens to be a real estate broker arranges a sale of property to a named individual for a set fee. The contract is performed in accordance with all of its terms; the seller rejects a better contract; is present at a closing where everybody else knows what is going on except him, and then subsequently sues and the trial court and the majority opinion not only disallows the commission but allows subsequent profits on the resale. In my mind the only fraud being perpetrated here is by the Handys. They see an opportunity for quick profit; a disgruntled realtor convinces them that they have an opportunity to sue for further profit and the courts become an able assistant to the perpetration of this fraud. The noble effort of requiring real estate agents to use the utmost good faith in dealing with their clients is not added to one bit by this opinion and misses completely the evidence and facts developed in this case. I would reverse the trial court and enter judgment for Garmaker and dismiss the complaint against Bergstedt Realty.
KELLEY, J., took no part in the consideration or decision of this case.. The record in this case fairly indicates that this entire litigation was promoted by Mr. Bakewell who lost a real estate commission because of Handys’ decision to sell to Lund.