## Facts

- A.A. Marchiondo, a real estate broker, was engaged by Frank Scheck, the owner of certain real property.
- Scheck signed a writing offering to sell the property to a named prospective purchaser and stating he would pay Marchiondo a commission (a percentage of the sale price) if the sale was made.
- The writing set a six-day period for acceptance.
- On the morning of the sixth day, Scheck delivered a written revocation, which Marchiondo received.
- Later that same day, Marchiondo obtained the prospective purchaser’s acceptance of Scheck’s offer.
- Marchiondo sued Scheck for breach of contract, seeking the commission stated in the writing.
- The trial court dismissed the complaint on the ground that a principal may revoke a broker’s authority before the broker procures a purchaser.

## Issues

1. Whether an offer to pay a real estate commission upon sale constitutes an offer to enter a unilateral contract.
2. Whether an offeror has the right to revoke such an offer after the broker has begun performance but before completion.
3. Whether the broker’s alleged partial performance before receipt of the revocation presented a factual question that precluded dismissal.

## Decision

- The Supreme Court of New Mexico reversed and remanded.
- The court treated Scheck’s writing as an offer to enter a unilateral contract to pay a commission upon the broker’s completed performance (a sale).
- The court distinguished the offeror’s power to revoke from the right to revoke without liability.
- The court held that partial performance may cut off the offeror’s right to revoke, creating a contract that becomes binding upon completion of the invited performance.
- Because what constitutes partial performance is fact-dependent, the court held dismissal improper and remanded to determine whether Marchiondo had partly performed before receiving the revocation.

## Legal Principles

- An offer to pay upon completion of an act is an offer for a unilateral contract; acceptance occurs by performance.
- A principal may have the power to terminate an agency, but termination can be wrongful if it breaches contractual obligations.
- When the offeree begins performance invited by an offer for a unilateral contract, the offer may become irrevocable for the stated period, functioning like an option contract.
- Partial performance can create a conditional contractual obligation: the offeror must allow completion, and the offeree’s right to payment depends on completing performance.
- Whether conduct amounts to partial performance sufficient to bar revocation is a question of fact.

## Conclusion

The court held that a broker’s beginning performance under a unilateral commission offer can bar the offeror’s right to revoke, but remanded because the existence and sufficiency of partial performance before revocation required factual determination.


Marchiondo v. Scheck, 78 N.M. 440, 432 P.2d 405 (N.M. 1967)