                                   No. 82-341
                   IN THE SUPREP4E COURT OF THE STATE OF JYIONTANA

                                        1983



BLUMFIELD AGENCY, BILL EDWARDS
and DUROCHER REALTY,
                    Plaintiffs and Appellants,


LITTLE BELT, INC., a Mont. corp.,
RUSSELL B. PEDERSON, JEROME D.
PEDERSON, and WALLACE PEDERSON,
                    Defendants and Respondents.




Appeal from:        District Court of the Fourteenth Judicial District,
                    In and for the County of Wheatland, The Honorable
                    Nat Allen, Judge presiding.

Counsel of Record:
         For Appellants:

                    Alexander & Baucus; Ward E. Taleff, Great Falls,
                    MT
                    Graybill, Ostrem, Warner & Crotty; Donald L.
                    Ostrem, 18-6th St. No., Ste. 200, Great Falls,
                    Montana
         For Respondents:
                    Moore, Rice, OIConnell & Refling; Yary Lou Schlegal,
                    P. 0 Box 1288, Bozeman, MT 59715
                        .




                                    Submitted on Briefs:    December 16, 1982
                                                 Decided:   April 28, 1983


~ i l e d : APR   2 8 1983



                                                  --
                                    Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.


     Plaintiffs appeal a summary judgment of the Wheatland
District Court which denied them recovery of a real estate
commission and which held them liable for the defendants'
attorney fees.
     The facts are not in dispute.            Whether plaintiffs are
entitled    to     a    real   estate    commission   depends    on     the
interpretation of the language in a listing agreement which
provides that the brokers were "employed              . . .   to sell or
exchange the property described hereon at the selling price
and on the terms noted.         . . ."     Plaintiffs would give no
meaning to this language and would also ignore our previous
holdin9 in Diehl and Associates, Inc. v. Houtchens (1977),
173 Mont. 372, 567 P.2d 930, where we interpreted virtually
identical language.        On the attorney fees question, Blumfield
Agency argues that the fee awarded is excessive; plaintiff
Durocher Realty argues it should not be bound by the award of
attorney fees because it was not a party to the agreement
between Rlumfield Agency and the defendants.                  We affirm.
    Defendants own a ra.nch in Wheatland County and listed it
for sale through the Blumfield Agency of Great Falls.               After
obtaining    the       listing, Blumfield Agency, pursuant         to an
authorization in the listing agreement, enlisted the aid of
Durocher Realty in September to help sell the ranch.                  These
agencies entered into a cooperative agreement.                The listing
agreement, a standard preprinted form, with print so small it
is hardly readable, provided that the Blumfield Agency was
employed    ". . .     - - -or exchange the property described
                       to sell
hereon at the selling price and on the terms noted                           . . ."
(Emphasis added.)
     On    September    16,    1980, six days            after the           listing
agreement     was    signed,   Robert         Durocher,       working    as       the
Durocher Agency, found a prospective buyer and presented an
earnest     money       and     buy-sell              agreement         to        the
defendant-sellers, and the defendants signed the agreement on
the same day.        Before the sale could be completed, however,
problems developed.
     Farmers Home       Administration held             a mortgage           on   the
property, a fact known to all parties (and to the plaintiffs)
at the time the buy-sell agreement was signed.                          Both the
defendant-sellers and the prospective purchasers proceeded on
the assumption the mortgage could be assumed and for the same
interest rate.        The Farmers Home Administration would only
transfer the        loan if certain conditions were met.                          The
prospective purchasers were either unable or unwilling to
assume those conditions.        One of the conditions was that the
interest rate be doubled.
     The    defendant-sellers were             at all     times willing            to
complete the sale on the terms of the buy-sell agreement with
the prospective buyers.          It appears that the prospective
purchasers were also willing to do so, but Farmers Home
Administration imposed conditions which in effect changed the
terms of the buy-sell agreement.                    The deal fell through.
     The plaintiffs, without consent of or even notice to the
defendant-sellers, returned the earnest money payment to the
prospective    purchasers      and       by    so     doing    terminated         the
buy-sell      agreement.             A        short      time     later           the
plaintiff-realtors filed suit against the defendant-sellers
asking for commissions in the amount of $199,500 and attorney
fees     as   provided    for     in    the     listing agreement.             After
extensive discovery, both parties moved for summary judgment.
Summary judgment was granted to the defendant-sellers and
this appeal followed.
        The controlling authority is Diehl and Associates, Inc.
v. Houtchens, supra.            The language in the listing agreement
in Diehl is almost identical to the language in the listing
agreement in this case.                In Diehl, we held that a listing
agreement that employs a broker to sell property does not
entitle       the   broker   to    a    commission         until     the    sale    is
completed--title must pass and the purchase price must be
paid.     Diehl, 173 Mont. at 379, 567 P.2d at 935.                        There, we
explained the differences in real estate contracts which
contain this kind of language and those which merely require
that the broker find a buyer who is ready, willing and able
to perform.         The language here provides that the broker is
employed to "sell or exchange the property," and it clearly
falls within our holding in Diehl.
        The   undeniable     situation in           this    case     is that       the
defendant-sellers were at all times willing to perform on the
conditions of the buy-sell agreement and it appears that the
prospective purchasers were also.                   However, a third party,
the Farmers Home Administration, effectively changed the
conditions      by    insisting,        among      other    things,        that    the
interest rate be          doubled.         Neither      the     seller nor         the
prospective purchaser           can be        faulted      in   this    situation.
Given     these      circumstances,           it     would      be      manifestly
unconscionable       to   now     permit      the    brokers       to   recover     a
$199,500 commission.         A commission was to be paid only upon
completion of a sale.
        The listing agreement provided that in the event of a
dispute       and     court     action,      attorney    fees    for    trial    and
appellate work would be paid to the prevailing party.                            The
trial     court       ordered      that     the    plaintiffs    pay    $8,415    in
attorney fees.
        The       position    of    the     plaintiffs    in    this    appeal    is
baffling.           One law firm filed a brief on behalf of the
Blumfield Agency and Bill Edwards.                   Another law firm filed a
brief on behalf of Durocher Realty.                  The Blumfield Agency and
Bill Edwards have not raised any issue concerning attorney
fees.    Accordingly, for this reason alone we affirm the award
of   attorney         fees    as    against       Blumfield    Agency   and     Bill
Edwards.
       On the other hand, Durocher Realty raises two issues
with regard to attorney fees.                First, Durocher claims that he
should not have to pay any attorney fees because he was not a
party to the listing agreement but only assisted Blumfield
Agency in finding a purchaser.                    Second, Durocher argues for
several reasons, but without any citation to the record, that
the fee is too high.            We affirm on both issues.
        Blumfield       Agency        and     Durocher        Realty    signed    a
co-brokers' agreement, and by its terms Durocher Realty could
share in the commission if a sale was completed.                        In filing
suit    here,       Durocher       Realty    did    precisely     that--Durocher
claimed       a    broker's     fee    for    finding    a     purchaser.        The
complaint did not separate the claims of Blumfield Agency and
Durocher Realty--both sued for a commission and asked for
payment of attorney fees if they prevailed.                      If Durocher can
avail himself of the benefits of the listing agreement in the
event he won, it is hardly fair that he can disavow the
burdens of this listing agreement because he lost.                        A party
cannot avail himself of the benefits of a contract on the one
hand but avoid the burdens of that same contract on the other
hand.
        Durocher,    without    reference   to   the    record,   claims
several factors were considered which made the attorney fees
too high.      Nor does he cite any authority for his position.
We cannot believe therefore, that Durocher is serious about
his   claim.        If   so,   it would   have   been   presented with
references to the record and with citations of authority.
The attorney fees awa.rd as to Durocher is also affirmed.
      The order granting summary judgment to defendants and
awarding attorney fees is affirmed.




We Concur:
Mr. Justice Frank B. Morrison, Jr. dissenting:
        I respectfully dissent.

        The undisputed facts establish that defendants entered
into     a    real    estate    broker's     employment     contract     with
plaintiffs Blumfield Agency and Bill Edwards for the sale of
their       real   property.      The    brokers    employment      contract
provided      for the payment of a commission equal to seven
percent of the selling price of the real property.                       That
contract of employment stated as follows:
       "For value received, you hereby are employed to
       sell or exchange the property described hereon at
       the selling price and on the terms noted.        You
       hereby are authorized to accept the deposit on the
       purchase price.   You may, if desired, secure the
       cooperation of any other broker, or group of
       brokers, in procuring a sale of said property. In
       the event that you, or any other brokers
       cooperating with you, shal'T-find a buyer ready and
                                     --
       willing to enter - - - a deal for the said price and
                        into
       terms, orsuch other terms and prices I may accept,
       or that during your employment you place me in
       contact with a buyer to or through whom at any time
       within a 180 days after the termination of said
       employment I may sell or convey said property, I
       hereby agree to pay you - - - for your services
                                in cash                              a
       commission a       to seven percent - - above
                                              of the
       stated selling price. " (emphasis added)
       On    September    15,    1980,     plaintiff     Durocher   Realty,
cooperating with the listing agreement of plaintiff Blumfield
Agency, presented to the defendants an executed earnest money
receipt and agreement to sell and purchase.                 Subsequent to
the execution of the purchase and sale agreement, problems
arose       between   defendants    and     the    purchasers    over     the
assumption of an existing mortgage with the Farmers Home
Administration.          Negotiations      aimed    at    compromise     were
conducted, but the ultimate transfer of the real property
between purchaser and seller never took place.               The agreement
to sell and purchase was not conditioned upon assumption of
the FHA mortgage and no showing was made that the purchasers
were financially unable to complete the transaction.
     The plaintiffs performed under the listing agreemen.t and
were entitled to their commission.     The brokers' work was
finished.   What subsequently transpired between sellers and
purchasers is of no consequence.   Under the listing agreement
plaintiffs are entitled to their commission.
     I would reverse and remand with directions to enter
judgment in favor of plaintiffs.
