Tilman A. Rogness, owner, entered into four separate agreements with Mark Realty, Inc., a real estate broker. They were entitled "exclusive right of sale" and gave the broker, for a stated period of time, the exclusive right to sell the property for a certain stated price and on certain terms. The broker sued on the four agreements for brokerage commissions, alleging that during the time provided in the agreements the owner had conveyed the four properties. The owner's answer alleged affirmative defenses to the effect that the owner had "canceled, revoked, and terminated" the brokerage agreements before the properties were sold and that the broker had never performed under the agreements.
The trial judge construed the brokerage agreements to constitute mere offers to enter into unilateral contracts under which the broker would be entitled to a commission only if he performed by "finding a purchaser of the above property." If the documents in question are merely offers limited to acceptance by performance only, the trial judge's analysis and conclusion would be correct.
We cannot agree that the documents were only offers for a unilateral contract. The documents illustrate what has been termed "the usual practice" in the making of bargains. One party indicates what he will do and what he requires in exchange and the other then agree. These documents, when first executed by the owner and tendered to the broker, constituted offers which, when accepted by the broker by his execution, constituted contracts. The contract is bilateral because it contains mutual promises made in exchange for each other by each of the two contracting parties.
The most common recurring brokerage transaction is one in which the owner employs a broker to find a
