The opinion
TURNER, Justice
(concurring).
Is the plaintiff entitled to a sales commission under the contract entered into between the plaintiff, a real estate broker, and the defendant Dahl, the property owner, or is plaintiff entitled to damages for breach of contract by defendant? These are the paramount issues of this case. Plaintiff is entitled to a sales commission if he produced a buyer ready, willing and able to buy according to the terms of the listing agreement. Plaintiff is entitled to a commission if, during the life of the contract, the property was sold by the owner, and plaintiff is entitled to damages for breach of contract, if during the life of the contract, it was breached by the owner so that the broker was prevented from earning a commission. In other words, if the owner
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created a condition which prevented or prohibited plaintiff from performing the contract, then the owner is liable in damages.
To recover for performance, plaintiff would have to prove by competent, credible evidence that he had a purchaser who was ready, willing and able to perform. To recover a commission for a sale made by the owner, proof of the transaction necessarily would have to be positive, both competent and credible, and just as worthy of belief as in the first instance. To recover damages for prevention of compliance, the evidence required for recovery likewise would have to be competent and credible. I am of the opinion that in order for the broker to recover where he claims the owner has prevented his performance by selling, and by agreement with the prospective purchaser has delayed execution and delivery of conveyance so as to defeat the broker of a commission, the broker must carry the burden of proof, either showing the refusal of the owner to convey to a purchaser presented by the broker or by competent evidence of an enforceable contract which would prevent the owner from conveying in case a purchaser were found by the broker.
I believe the proof required for recovery because of a breach must be just as positive, competent and credible as that required to warrant recovery for performance. Otherwise, the law would invite litigation and allow recovery for breach of contract upon evidence insufficient to warrant judgment for compliance with the terms of the agreement.
The record does not contain evidence necessary to sustain the judgment of the lower court. It appears that without evidence of an enforceable contract, the plaintiff brought this action prematurely. For the reasons stated, I concur.