# Lewis v. Dahl (Butt, Garnishers)

> Utah Supreme Court · August 10, 1945 · 108 Utah 486

URL: https://www.frixlaw.com/law-library/cases/3988101

## Case

- **Full name:** LEWIS v. DAHL (BUTT Et Al., Garnishees)
- **Court:** Utah Supreme Court
- **Decided:** August 10, 1945
- **Citations:** 108 Utah 486; 161 P.2d 362; 160 A.L.R. 1040; 1945 Utah LEXIS 143
- **Precedential status:** Published
- **Opinion:** Concurrence by Larson
- **Judges:** McDonough, Larson, Turner, Wade, Wolfe
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3988101

## Opinion text

LARSON, Chief Justice.
I concur in the result arrived at by Mr. Justice McDon-ough. But I reach this conclusion by a different rationale. The broker has a contract which permits him to earn a commission by finding a purchaser who is able, ready and willing to buy under the terms fixed by the listing; or by producing a person who does buy under other terms accepted by the seller; provided that in the first case the would-be purchase is produced, or in the second case the sale is made, during the life of the listing. This is the obligation the contract imposes on the broker. He is not entitled to a commission until he has performed his obligations under the contract, unless he is prevented from performance by the act of the seller. The contract does not forbid the seller from seeking purchasers, or negotiating sales, or even making sales independently of the broker. In fact it recognizes his right so to do, by providing that if during the life of the contract the owner sells the property independently of the efforts of the broker, the broker is entitled to a commission. Why? Because the owner has then relieved the broker from performance of his obligations, because by such action, he has prevented the broker from performing by effecting a sale. Since the owner cannot deliver the article to be sold, he is in the same position as if the broker had produced a buyer with the cash, in accordance with the terms of the listing and the owner had refused to sell. The broker, no more than any other man is required to do useless things. This is the only sound basis for the provision in the contract granting a fee to the broker if the owner makes a
sale
during the period of the listing.
In this case the broker never did produce a buyer who would pay the list price. Had he done so the owner would
*495
have been under the necessity of either making the sale or of refusing to keep his contract. In either event the broker would have been entitled to his fee. Had the owner sold to another or put himself in a position where he could not in law perform his obligation to convey under the contract, he could not urge nonperformance by the broker as a defense to a claim for the fee. But as long as the owner legally had it in his power to convey to any qualified purchaser produced by the broker, the broker has not been interfered with, and must produce his purchaser to draw his fee. Had Lewis produced a purchaser, Dahl may readily have accepted the offer, conveyed the property, and taken his chances on any claims which might have been made by the Butts. Since wé have held that the evidence does not show a conveyance of title by Dahl, nor an enforceable contract of sale or for a conveyance, upon the record Butts could assert no valid claim against Dahl.
Since the evidence does not establish that Dahl had conveyed the property nor put himself in any position that in law would prevent or hinder him from conveying to any qualified purchaser produced by the broker, nor did he refuse to convey to any such purchaser, it follows that the broker is not entitled to a commission.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3988101. Public record. Not legal advice.