## Facts

- Restaurant and lounge owners (the Melloses) signed an exclusive right-to-sell listing with Associates Realty, Inc., running to March 1, 1977, with a 10% commission if sold on authorized or other agreed terms.
- The listing included an extension clause providing the commission was earned if a sale was later consummated with a “prospect introduced or interested” in the property during the listing term by Associates.
- During the listing term, Nikola Nikolic became interested in the property and consulted broker Joel Silverman, who had previously listed it; Nikolic had earlier learned from Silverman that the property was for sale.
- Silverman helped Nikolic prepare a written offer and, with Associates’ permission, presented it to the sellers on February 9, 1977; the sellers rejected it and issued a counteroffer, but negotiations ended without agreement.
- After the listing expired, the sellers later contacted Nikolic directly and sold the property (at a lower price and on different terms) to Nikolic’s wife for $275,000, without paying any broker a commission.
- Silverman and Associates sued for the commission under the extension clause; the trial court awarded the commission and found no fraud by the sellers.

## Issues

1. Whether the extension clause in an exclusive right-to-sell listing entitled the brokers to a commission when the sellers consummated a sale after expiration with a buyer whose interest was generated during the listing term.
2. Whether the extension clause required the brokers to be the “procuring cause” of the eventual sale.
3. Whether the post-expiration sale occurred within a reasonable time so as to fall within the extension clause.
4. Whether Silverman’s efforts, undertaken with Associates’ permission, could satisfy the clause’s requirement that the prospect be introduced or interested by Associates.

## Decision

- The Supreme Court of Alabama affirmed the judgment awarding a commission to Silverman and Associates.
- The extension clause was satisfied because the eventual purchaser was a prospect introduced or interested in the property during the listing term through broker activity.
- The clause did not require proof that the brokers were the procuring cause of the final sale.
- A sale consummated several weeks after the listing expired was within a reasonable time under the clause on these facts.
- Silverman’s actions were attributable to Associates because he acted with Associates’ permission in presenting the offer and conducting negotiations.
- The trial court’s finding of no fraud by the sellers was upheld.

## Legal Principles

- An exclusive right-to-sell listing may validly provide, via an extension (protection) clause, that a commission is earned on a sale consummated after expiration with a prospect the broker introduced or interested during the listing term.
- Where the contract ties commission entitlement to “introduced or interested” language, courts will not add a procuring-cause requirement absent contractual language imposing it.
- Extension-clause coverage is limited to sales consummated within a reasonable time after expiration, assessed in light of the timing and substance of pre-expiration broker activity.
- Broker efforts performed with the listing broker’s authorization may be treated as satisfying the listing broker’s contractual obligations for purposes of an extension clause.

## Conclusion

The court enforced the listing’s extension clause and awarded a commission because the brokers interested the eventual purchaser during the listing term, the sale followed within a reasonable time after expiration, and the contract did not require the brokers to be the procuring cause of the completed transaction.


Mellos v. Silverman, 367 So. 2d 1369 (Ala. 1979)