## Facts

- A property owner orally listed an apartment building for sale with a licensed real estate broker on specified terms, including an agreed commission.
- The broker produced a prospective purchaser who offered to buy on the listed terms.
- The owner refused to accept the buyer’s offer and did not complete the sale.
- The broker sued to recover a commission, claiming he had produced a ready, willing, and able purchaser under the oral listing.
- After a bench trial, the district court found (1) the owner authorized the broker via an oral listing and (2) the broker produced a purchaser ready, willing, and financially able to buy on the agreed terms, and entered judgment for the broker.
- On appeal, the owner argued (1) insufficient evidence supported the finding that the purchaser was financially able and (2) the oral listing was unenforceable because the real estate licensing statute allegedly required written owner consent to offer property for sale.

## Issues

1. Whether the evidence was sufficient to support the trial court’s finding that the purchaser was financially able to consummate the transaction.
2. Whether an argument that the licensing statute makes an oral listing illegal and unenforceable may be considered on appeal when it was not raised or decided in the district court.

## Decision

- The court affirmed the judgment for the broker.
- The court held the record supported the trial court’s finding that the prospective purchaser was financially able, and the finding was not subject to reversal under the applicable standard of review.
- The court declined to decide whether the licensing statute invalidated an oral listing because that theory was neither raised nor decided in the district court.

## Legal Principles

- In a bench trial, appellate review of factual findings is highly deferential; supported findings—such as a purchaser’s financial ability—are not overturned absent clear error.
- A broker earns a commission when authorized on stated terms and when the broker produces a purchaser who is ready, willing, and able to buy on those terms, even if the owner refuses to proceed.
- Appellate courts generally will not consider legal theories, including statutory illegality defenses, that were not presented to and addressed by the trial court.

## Conclusion

The D.C. Circuit upheld a commission award because the trial court’s “able purchaser” finding was adequately supported and because the owner’s licensing-statute illegality argument was not preserved for appellate review.


Miller v. Avirom, 384 F.2d 319 (D.C. Cir. 1967)