This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
CX-96-523

In Re Estate of:
Vivien South, Deceased,
Alan Olson, et al.,
Respondents,

vs.

Vivien South Estate, and
Evelyn South as Personal Representative,
Appellant.

Filed August 6, 1996
Affirmed
Foley, Judge*

Otter Tail County District Court
File No. P6941954

Robert W. Bigwood, Kent D. Mattson, Pemberton, Sorlie, Sefkow, Rufer & Kershner, P.L.L.P., 110 N. Mill Street, Post Office Box 866, Fergus Falls, MN 56538-0866 (for Respondents)

Brent Eliot Walz, Kennedy & Nervig, 503 Jefferson Street South, Post Office Box 647, Wadena, MN 56482-0647 (for Appellant)

Considered and decided by Short, Presiding Judge, Schumacher, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

This is an appeal from the district court's order requiring an estate to pay a real estate broker's commission. Because the sellers terminated the sale before the broker could perform, we affirm.

FACTS

Vivien and Evelyn South, husband and wife, respectively, decided to sell their farm and home. On October 5, 1993 the Souths signed a listing agreement naming Alan Olson as their real estate broker. Olson's commission was eight percent of the selling price. He was entitled to a commission by producing a buyer willing and able to purchase the property for $220,000 in cash or an acceptable contract for deed.

Dale Menze visited the farm in the winter of 1994 and expressed an interest in buying it. On March 2, 1994 Menze signed a purchase agreement with Olson's assistance. Menze attached two contingencies to the agreement. The first contingency required "[a]cceptable financing." Second, Menze must drill an acceptable test water well, but this contingency could be removed by Menze depositing $25,000 earnest money by April 1, 1994, or the entire agreement would be void. The closing date was set for April 15, 1994. Later on March 2, the Souths signed the purchase agreement. The Souths contend the purchase agreement was only a proposal that they had to sign before the bank would loan Menze money. They thought the first contingency required Menze to provide a financial statement acceptable to them.

On about March 10, before the April 15 closing date, Vivien South told Menze and Olson that he would not go through with the sale. Both Olson and the Souths sought legal counsel. Vivien South died on April 11.

Olson presented a $17,600 claim for his commission to South's estate on March 3, 1995. Evelyn South, the estate's personal representative, denied the claim. Olson petitioned the district court. In an order issued January 30, 1996 the district court, sitting without a jury, determined that Olson was entitled to his commission. [1] Evelyn South appeals.

D E C I S I O N

This court reviews the decision of a district court, sitting without a jury, to determine whether the court's factual findings are clearly erroneous and whether it erred in its conclusions of law. Schweich v. Ziegler, 463 N.W.2d 722, 729 (Minn. 1990).

When a broker performed "all that he undertook to perform" the broker is entitled to a commission. Greer v. Kooiker, 312 Minn. 499, 510, 253 N.W.2d 133, 141 (1977). A broker earns a commission by producing a buyer who is able to purchase the property, to complete the entire agreement. Lohman v. Edgewater Holding Co., 227 Minn. 40, 44, 33 N.W.2d 842, 845 (1948); Century 21-Birdsell Realty, Inc. v. Hiebel, 379 N.W.2d 201, 204 (Minn. App. 1985), review denied (Minn. Feb. 14, 1986). A purchaser is financially "able to buy" if he or she has (1) the necessary cash, (2) personal assets and a credit rating to provide sufficient funds with reasonable certainty, or (3) a binding commitment for a loan. Shell Oil Co. v. Kapler, 235 Minn. 292, 298, 50 N.W.2d 707, 712 (1951).

According to the listing agreement, Olson need not actually sell the property to earn his commission. If Olson "present[ed] a Buyer who is willing and able to buy the property at the price and terms required in this Contract, but [Souths] refuse to sell, [Souths] will still pay [Olson] the same commission." The district court found that at the time of the offer, Menze possessed "sufficient funds or means to purchase the Souths' property, according to its terms." Menze's financial statement showed a net worth of $364,770, which Evelyn South's counsel conceded at oral arguments. But even if Menze was not financially able to buy at the time of the offer, it is irrelevant if the Souths anticipatorily breached the purchase agreement.

A broker has until the listing agreement expires to produce an able buyer. Hiebel, 379 N.W.2d at 204. An unconditional repudiation of a contract before the time of required performance constitutes an anticipatory breach of contract. In re Haugen, 278 N.W.2d 75, 79 n.6 (Minn. 1979). A broker is entitled to a commission although it failed to perform if the failure is the seller's fault. Hiebel, 379 at 205 (quoting Olson v. Penkert, 252 Minn. 334, 343, 90 N.W.2d 193, 200 (1958)).

The district court found that Vivien South anticipatorily breached the purchase agreement. The record supports the court's determination. Olson had until the listing agreement expired on October 5, 1994 to produce a buyer able to purchase the property. The parties agreed to an April 15 closing date. But on March 9 or 10, long before the closing date, South canceled the sale. At oral argument, Evelyn South's counsel conceded that the Souths anticipatorily breached the purchase agreement, but argued that they retracted this repudiation and tried to reinstate the sale.

If the injured party has not changed its position in reliance on the repudiation, the repudiating party may retract its repudiation. Space Ctr., Inc. v. 451 Corp., 298 N.W.2d 443, 451 (Minn. 1980). The testimony conflicted on whether the Souths retracted their repudiation. Evelyn South testified that both she and her husband called Menze. When she discovered Menze was looking at another piece of land, she told Menze to call them if that deal did not work out. The Souths' attorney sent a letter to Olson's attorney stating "[t]he Souths are willing to sell the property if the contingency of acceptable financing is met." But Menze testified that he never attempted to continue the sale after Vivien South ended it. Olson testified that "[t]here was not going to be any closing. It was over." The Souths' attorney ordered Olson not to provide the title abstract to Menze. The evidence supports the district court's determination that the Souths did not retract their repudiation.

Finally, Evelyn South contends that the district court incorrectly applied an irrebuttable presumption. The district court stated, in its conclusions of law, that "a seller's acceptance of an offer can be conclusive evidence that the buyer is ready, willing and able to perform." The court cited no authority for this assertion. But this conclusion does not affect the district court's ultimate determination that the Souths anticipatorily repudiated the purchase agreement and did not continue with the sale. Even if Menze were unable to purchase the Souths' property at the time of the offer, Menze had until the closing date to provide evidence of a loan. The court's conclusion does not merit reversal.

Affirmed.


Footnotes

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ' 10.

[1]Evelyn South sought amended findings or a new trial. Before the court ruled on those posttrial motions, she filed a notice of appeal with this court. The district court issued an order dated March 20, 1996, denying South's posttrial motions but amending its conclusions of law. Because an appeal to this court suspends the operation of the order until the appeal is determined, Minn. Stat. ' 525.714 (1994), this court will only consider the district court's January 30 order.