Drake v. Hosley

713 P.2d 1203 (Alaska 1986)



In reviewing a summary judgment, the court must determine whether there are any genuine issues of material fact, and whether the moving party is entitled to judgment as a matter of law. 


A broker produced a ready, willing, and able buyer. The closing on the sale of the property was to occur 10 days after the title work was completed. Before the 10 days had expired, however, the seller sold the property to another group. The broker sued for his commission under the contract with the seller.and the trial court granted the broker summary judgment.


Was the broker entitled to his commission?




The court noted that Alaska Stat. § 08.88.361 provided that a commission was earned when the real estate broker fulfilled the terms of a written personal services contract. The court also noted that public policy required the courts to read into every brokerage agreement or contract of sale a requirement that, barring default by the seller, commissions would not be deemed earned unless the contract of sale was performed. However, the court held that the broker was entitled to a commission if improper or frustrating conduct by the seller prevented title from passing. The court also held that the broker did not breach his fiduciary duty to the seller because there was no evidence that the broker ever acted for the buyers.

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