McCully, Inc. v. Baccaro Ranch

160 	284 NEBRASKA REPORTS
of $8,176.84 and to Rachel in the amount of $1 million. In the
parents’ action, we modify the judgment in favor of Kelly and
Timothy by combining the amounts and reducing the total to
$1 million payable to them jointly; and we affirm as modified.
Judgment in no. S-10-879 affirmed.
Judgment in no. S-10-880 affirmed aS modified.
Wright, J., not participating.
mccully, inc., doing buSineSS aS mccully ranch company,
a nebraSka corporation, appellant, v. baccaro ranch,
a nebraSka limited liability company, appellee.
816 N.W.2d 728
Filed July 20, 2012. 	No. S-11-952.
1. Trial: Witnesses. In a bench trial of an action at law, the trial court is the
sole judge of the credibility of the witnesses and the weight to be given their
testimony.
2. Witnesses: Evidence: Appeal and Error. An appellate court will not reevaluate
the credibility of the witnesses or reweigh testimony but will review the evidence
for clear error.
3. Judgments: Appeal and Error. The trial court’s factual findings in a bench
trial of an action at law have the effect of a jury verdict and will not be set aside
unless clearly erroneous.
4. ____: ____. In reviewing a judgment awarded in a bench trial of a law action, an
appellate court does not reweigh evidence, but considers the evidence in the light
most favorable to the successful party and resolves evidentiary conflicts in favor
of the successful party, who is entitled to every reasonable inference deducible
from the evidence.
5. Brokers: Contracts. In determining whether a commission is due a broker, the
court must look to the terms and conditions of the listing agreement.
6. Contracts. When the terms of a contract are clear, a court may not resort to rules
of construction, and the terms are to be accorded their plain and ordinary mean-
ing as the ordinary or reasonable person would understand them.
7. ____. If a contract is unambiguous, the court will enforce the contract in accord-
ance with the plain meaning of the words of the contract.
8. ____. Enforcement of a contract depends upon the terms of the contract and the
facts that are applicable to the contract.
9. Brokers: Real Estate: Contracts: Sales. Ordinarily, a real estate broker who,
for a commission, undertakes to sell land on certain terms and within a specified
period is not entitled to compensation for his or her services unless he or she
produces a purchaser within the time limit who is ready, willing, and able to buy
upon the terms prescribed.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

McCULLY, INC. v. BACCARO RANCH 	161
Cite as 284 Neb. 160
10. Brokers: Property: Contracts: Sales. When a broker secures a prospective
buyer who is ready, willing, and able to purchase the subject property, the person
who hired the broker has received the service for which he or she has contracted,
and the broker’s right to compensation cannot be impaired by either the subse-
quent inability or unwillingness of a purported owner to consummate the sale on
the terms prescribed.
11. 	Brokers: Property: Sales. A seller is under no obligation to sell his or her prop-
erty to a purchaser procured by a broker.
12. Brokers: Property: Contracts: Sales. The fact that a seller exercises his or
her right not to sell the listed property to a purchaser produced by a broker
does not relieve the seller of his or her obligation to pay the broker the agreed-
upon commission.
13. Contracts: Sales: Words and Phrases. A prospective purchaser is financially
able if he or she has the capability to make the downpayment and all deferred
payments required under the proposed contract of sale.
Appeal from the District Court for Hooker County: donald
e. 	roWlandS, 	Judge. 	Reversed 	and 	remanded 	for 	further
proceedings.
Ward F. Hoppe and Colby Rinker, of Hoppe Law Firm, for
appellant.
Steven P. Vinton, of Bacon & Vinton, L.L.C., for appellee.
heavican, c.J., Wright, connolly, mccormack, and miller-
lerman, JJ.
miller-lerman, J.
NATURE OF THE CASE
McCully, Inc., a broker doing business as McCully Ranch
Company (McCully), brought suit against its client Baccaro
Ranch, L.L.C. (Baccaro), as seller, claiming that Baccaro
breached the real estate listing agreement and that McCully
was entitled to a commission from Baccaro under contract
theory or, in the alternative, under the theory of unjust
enrichment. In a previous appeal, we concluded that the
listing agreement was enforceable and remanded the cause
for further proceedings. McCully, Inc. v. Baccaro Ranch,
279 Neb. 443, 778 N.W.2d 115 (2010). After trial, the dis-
trict court for Hooker County determined that McCully was
not entitled to a real estate commission. McCully appeals.
Following our review for clear error, we determine that

162 	284 NEBRASKA REPORTS
McCully produced a ready, willing, and able purchaser dur-
ing the term of the listing agreement on terms acceptable
to Baccaro and that McCully is entitled to a commission.
Because the district court clearly erred, we reverse, and
remand for further proceedings.
STATEMENT OF FACTS
This matter was tried to the court, and many facts taken
from the record are not in dispute. The issue in the case is
whether McCully was entitled to a real estate commission from
Baccaro resulting from the exchange of the “Baccaro Ranch”
for a ranch owned by the exchanger, Greg Stine.
McCully and Baccaro entered into an exclusive listing
agreement on or about December 23, 2006. Baccaro wished
to sell or exchange the Baccaro Ranch, also called the River
Ranch, which is located in Hooker County. The listing agree-
ment provided that the listing period began on December 23,
2006, and ended on December 1, 2007. The listing agreement
further stated that the listing price for the Baccaro Ranch “shall
be $1,600,000.00 on the following terms: cash or other terms
acceptable to [Baccaro].” Paragraph 13 of the listing agree-
ment provided a scale of the commission rate based on the
purchase price to determine the commission owed to McCully.
Paragraph 13 also provided:
Commission rate based on the gross sale price of the
property shall be payable to BROKER payable upon the
happening of any of the following:
a) If, during the term of the Listing, Seller, Broker or
any other person:
I. seller exchanges the Property; or
II. finds a Buyer/Exchang[e]r who is ready, willing and
able to purchase/exchange the Property at the above price
and terms or for any other price and terms to [sic] which
Seller agrees to accept or
. . . .
d) If Broker is unfairly hindered by Seller in showing
or attempting to sell or exchange this Property; or
e) If within 180 days after the expiration of this
Listing Agreement, Seller sells/exchanges this Property

McCULLY, INC. v. BACCARO RANCH 	163
Cite as 284 Neb. 160
to any person found during the term of this listing,
or due to Broker[’]s efforts or advertising, under this
Listing Agreement[.]
During the term of the listing agreement, the exchanger,
Stine, made several offers on the Baccaro Ranch. Stine is
trained as a lawyer, was active in a banking business which
had recently been sold, and was interested in the Baccaro
Ranch because of its recreational potential stemming from
the fact that the Dismal River flowed through it. In December
2006, Stine initially offered to buy the Baccaro Ranch for
$1,200,000 	subject 	to 	a 	partial 	survey. 	Baccaro 	rejected
that offer.
In February 2007, Stine purchased the “Pados Ranch,” also
called the Lake Ranch or the Lake and Baldwin Ranch, which
is also located in Hooker County. The record shows that
Baccaro had previously expressed interest in exchanging the
Baccaro Ranch for the Pados Ranch because the latter was
better for Baccaro’s ranching needs and was approximately
2,000 acres larger than the Baccaro Ranch. In correspondence
dated February 24, 2007, Stine offered to exchange his recently
acquired Pados Ranch for the Baccaro Ranch with Baccaro
paying an additional $180,000 “boot” to Stine. Stine indicated
that he had paid $1,534,500 for the Pados Ranch. In this cor-
respondence to Baccaro, Stine noted that there had evidently
developed an understanding regarding boundary lines between
the Baccaro Ranch and its only neighboring ranch and Stine
suggested that a survey be done to facilitate the proposed
exchange. Some evidence showed that Baccaro wished to
avoid the expense of a survey. Stine did not receive a response
from Baccaro. On March 25, Stine sent a letter to Garth
Bullington, a managing member of Baccaro, stating that Stine
was withdrawing this offer.
In May 2007, Baccaro and the owner of its only neighbor,
the “Dismal River Ranch,” executed corrective deeds so that
the boundary lines of their ranches would “more accurately
reflect the recognized boundary lines as established by the
existing fences.” Thereafter, on June 18, Baccaro offered to
do a straight trade of the Baccaro Ranch for the Pados Ranch.
Stine did not accept this offer.

164 	284 NEBRASKA REPORTS
During the summer of 2007, Kevin McCully, McCully’s
president, 	and 	Stine 	toured 	the 	Baccaro 	Ranch 	on 	four-
wheelers. They were equipped with maps including a satellite
aerial map and a section, township, and range map and were
able to examine the placement of the fences relative to the
boundaries. Garth Bullington testified at trial that the fences
were not moved during all relevant periods. Kevin McCully
testified at trial that during their summer 2007 visit, Stine gave
Kevin McCully the impression that he was satisfied with the
fence lines and the boundaries of the ranch.
Following 	this 	inspection 	of 	the 	Baccaro 	Ranch, 	on
September 6, 2007, Stine offered a straight exchange of the
Pados Ranch and the Baccaro Ranch in a document entitled
“Real Estate Exchange Agreement.” That document contains
5 articles in 11 pages, covering a range of terms including
mutual representations and warranties, and was signed by
Stine, whose signature was notarized. Following trial, the court
found that the Real Estate Exchange Agreement which was
actually signed by the parties “contains only minor modifica-
tions from Stine’s original offer.” In his September 2007, offer,
Stine listed the two properties to be exchanged, with their legal
descriptions. This offer did not require a survey.
The legal description in the exchange agreement for the
Baccaro Ranch stated that it consisted of approximately 3,010
acres. The offer stated that the Baccaro Ranch was legally
described as follows:
All in Hooker County, Nebraska
S5-T21-R31 	N 	N1/2 	SE1/4 	NW1/4; 	N1/2 	SW1/4
NE1/4; N1/2 NE1/4; NE1/4 NW1/4; Lot 4 (Four)
S19-T22-R31 S1/2; S1/2 N1/2
S20-T22-R31 	SW1/4; 	NW1/4 	SE1/4; 	S1/2 	SW1/4
NW1/4
S29-T22-R31 E1/2 NW1/4; W1/2 W1/2; Lot 2 (Two);
Lot 3(Three); Lot 4 (Four); that part of Lot 1 (One) claim
38, except that part conveyed to Dismal Ranch Company
described in that warranty deed recorded with the Hooker
County Clerk, Book 14 Pages 74-75
S30-T22-R31 ALL
S31-T22-R31 N1/2; N1/2 SE1/4; NE1/4 SW1/4

McCULLY, INC. v. BACCARO RANCH 	165
Cite as 284 Neb. 160
S32-T22-R31 ALL, consisting of approximately 3,010
acres (the “Baccaro Property”).
The Pados Ranch was described in the proposed exchange
agreement 	as 	consisting 	of 	approximately 	5,040 	acres 	as
follows:
E 1⁄2 SW 1⁄4, Lots 3-4, Section 7 Township22 Range 31,
All Section 13 Township22 Range 32, E 1/2 , E 1⁄2 NW 1⁄4,
SW 1⁄4 NW 1⁄4, SW 1⁄4 Section 14 Township 22 Range
32, S 1⁄2 NE 1⁄4, SE 1⁄4 Section 15 Township22 Range 32,
NE 1⁄4; N 1⁄2 SE 1⁄4, Section 22 Township 22 Range 32, All
Section 23 Township 22 Range 32, S 1⁄2 SE 1⁄4 Section
12 Township 22 Range 32 Hooker County Nebraska and
All Section 2 Township 22 Range 32, N 1⁄2 NE 1⁄4; NE 1⁄4
NW 1⁄4 Section 11 Township 22 Range 32, All Section
1 Township 22 Range 32, S 1⁄2 Section 6 Township 22
Range 31, NW 1⁄4 Section 7 Township 22 Range 31 and
N 1⁄2; SW 1⁄4; N 1⁄2 SE 1⁄4 Section 12 Township 22 Range
32 all in Hooker County Nebraska, consisting of approxi-
mately 5,040 acres (the “Pados Property”).
Due to the importance of Stine’s September 7, 2007,
exchange offer, the members of Baccaro, with one exception,
met on September 28 at the office of their attorney, George
Vinton, to discuss Stine’s offer. There is evidence that the
full membership had not previously met. The members of
Baccaro include Alma Bullington and her eight children. The
three managing members of Baccaro are Alma Bullington,
Garth Bullington, and Valma Smith. At the meeting, the
members discussed Stine’s exchange offer. They also dis-
cussed the real estate commission which would be owed to
McCully if they accepted Stine’s offer, and Garth Bullington
testified that he believed that the commission would be
$30,000. Garth Bullington called Kevin McCully to ask what
the commission would be, and Kevin McCully advised him
that the commission would be approximately $90,000. Vinton
advised the members of Baccaro to wait on Stine’s offer until
they found out what the commission to McCully would be.
Vinton testified he had also advised Baccaro that a fair mar-
ket value needed to be assigned for exchange purposes and
that it would be prudent to include a term which in effect

166 	284 NEBRASKA REPORTS
indicated that the fences did not necessarily coincide with the
legal boundaries.
On October 2, 2007, Vinton sent McCully’s attorney a let-
ter discussing formulas by which to calculate a commission.
The letter indicates that Baccaro had tabled the exchange.
The letter acknowledged that Stine valued the Pados Ranch
at $1,534,500.
On October 31, 2007, Vinton sent McCully’s attorney a let-
ter stating that the terms of the September 2007 Real Estate
Exchange Agreement presented to Baccaro by Stine were
acceptable. Vinton also stated that Baccaro wished to add two
terms, and this October 31 correspondence has been referred to
as the “counteroffer” tendered by Baccaro. Baccaro wished to
add a provision stating that the fair market values of both the
Pados Ranch and the Baccaro Ranch were $1,532,160 and that
each party “accept[ed] the real estate to be conveyed to it sub-
ject to the location of existing fences.” The letter recognized
the issue regarding McCully’s commission, but stated that it
was premature to resolve it. For purposes of the listing agree-
ment, the October 31 counteroffer contained the terms that
Baccaro agreed to accept.
The Real Estate Exchange Agreement was not signed during
the listing period, which expired on December 1, 2007. Vinton
testified he did not know of his own knowledge “why we
didn’t get a response” to the counteroffer. Stine testified that
he was ready to exchange based upon the proposed exchange
agreement in the fall of 2007 and that he never withdrew his
September 2007 proposal. Stine testified that the exchange
agreement language regarding fences was added for assurance
for the members of Baccaro and that the disagreement between
McCully and Baccaro regarding the commission “led to just a
total lack of progress” in the fall of 2007.
Garth Bullington testified at trial that in January 2008, he
arranged for an employee of the Natural Resources Conservation
Service to come to the Baccaro Ranch. The employee used a
global positioning system (GPS) instrument to plot coordinates
along the fence lines of the Baccaro Ranch and created a map
using the coordinates which indicated that the acreage inside
the fence lines of the ranch was 3,226.6 acres.

McCULLY, INC. v. BACCARO RANCH 	167
Cite as 284 Neb. 160
During the term of the listing agreement, Baccaro had also
received offers from other potential buyers, including one for
$1,320,000 and another for $1,400,000. However, the par-
ties agree that Stine was the only possible ready, willing, and
able exchanger presented during the term of the listing agree-
ment, and the record as a whole shows that early on, Baccaro
expressed an interest in exchanging the Baccaro Ranch for the
Pados Ranch.
On July 10, 2008, a closing was held whereby the Baccaro
Ranch was exchanged for the Pados Ranch. It is obvious that
the actual closing between Baccaro and Stine took place after
the real estate listing agreement had expired on December 1,
2007, and outside the protected period, which was 180 days
after the expiration of the listing agreement. The Real Estate
Exchange Agreement signed by Baccaro and Stine is the actual
agreement tendered by Stine in September 2007 with only the
date on the first page changed in handwriting from September
2007 to June 18, 2008, and the addition of Alma Bullington’s,
Garth Bullington’s, and Valma Smith’s notarized signatures
dated June 18, 2008. Stine’s notarized signature on the exe-
cuted agreement remained dated September 6, 2007.
Vinton prepared an addendum to the Real Estate Exchange
Agreement, dated July 1, 2008, which Baccaro and Stine
signed. Stine did not participate in the creation of the adden-
dum. The addendum stated that the fair market values of the
Pados Ranch and the Baccaro Ranch were both $1,532,160,
which approximates the amount Stine had paid to purchase
the Pados Ranch in February 2007. The addendum provided
that the parties accept the properties subject to the location
of existing fences and to any claims of third parties resulting
from fences’ not being on the legal boundary lines and that
neither party warranted an exact number of acres that were
being exchanged.
Baccaro never paid a real estate commission to McCully.
McCully filed its complaint in the district court for Hooker
County on August 11, 2008, seeking a commission. Baccaro
responded with an August 21 motion to dismiss, which
was granted, along with leave to amend. McCully filed an
amended complaint on November 3, alleging both breach

168 	284 NEBRASKA REPORTS
of contract and unjust enrichment by Baccaro. Baccaro filed
a motion to dismiss for failure to state a claim under Neb.
Ct. R. Pldg. § 6-1112(b)(6). Other motions and rulings were
filed. The district court determined that the listing agreement
was unenforceable under the statute of frauds, determined
that McCully could not circumvent the statute of frauds by
pleading unjust enrichment, and granted Baccaro’s motion
to dismiss.
McCully appealed the dismissal and claimed, inter alia, that
the district court erred when it found that McCully failed to
state a claim for breach of contract or unjust enrichment. In
McCully, Inc. v. Baccaro Ranch, 279 Neb. 443, 778 N.W.2d
115 (2010), we concluded that the listing agreement was
enforceable and that McCully’s amended complaint alleged a
claim and a set of facts upon which relief could be granted. We
reversed the decision of the district court granting Baccaro’s
motion to dismiss, reinstated McCully’s amended complaint,
and remanded the cause for further proceedings.
On February 23, 2011, the district court overruled both
parties’ motions for summary judgment. A trial to the court
was conducted commencing in June 2011. On August 17, the
court filed a memorandum opinion and judgment in which
it found generally in favor of Baccaro and against McCully.
Regarding the claim based on an alleged breach of the listing
agreement, the court found that McCully failed to find a ready,
willing, and able buyer to purchase or exchange the Baccaro
Ranch at a price and on the terms which were acceptable to
Baccaro during the term of the listing agreement or within the
180-day protected period under paragraph 13(e) of the listing
agreement. Regarding the claim based on unjust enrichment,
the court found that Baccaro did nothing to hinder or impede
McCully’s ability to show or attempt to sell or exchange the
Baccaro Ranch. Although both parties had introduced evidence
regarding valuation for purposes of determining a commission,
if any, in view of its disposition of McCully’s claims, the court
made no ruling on the amount of a commission. The court dis-
missed both claims with prejudice.
McCully sought a new trial. On October 13, 2011, the dis-
trict court denied McCully’s motion. McCully appeals.

McCULLY, INC. v. BACCARO RANCH 	169
Cite as 284 Neb. 160
ASSIGNMENTS OF ERROR
McCully claims that the district court erred when it found
(1) that no ready, willing, and able exchanger was procured
during the term of the listing agreement between McCully and
Baccaro and (2) that Baccaro did not unfairly hinder or impede
McCully’s ability to affect an exchange.
Because we determine that McCully found Stine as a ready,
willing, and able exchanger during the listing period on terms
acceptable to Baccaro, and because the district court clearly
erred when it found to the contrary, we find merit to McCully’s
first assignment of error and reverse the court’s decision and
remand the cause on this basis. Accordingly, we do not con-
sider McCully’s second assignment of error. See In re Interest
of Hansen, 281 Neb. 693, 798 N.W.2d 398 (2011) (stating that
appellate court is not obligated to engage in analysis that is not
necessary to adjudicate case and controversy before it).
STANDARDS OF REVIEW
[1-4] In a bench trial of an action at law, the trial court is the
sole judge of the credibility of the witnesses and the weight to
be given their testimony. Hooper v. Freedom Fin. Group, 280
Neb. 111, 784 N.W.2d 437 (2010). An appellate court will not
reevaluate the credibility of the witnesses or reweigh testimony
but will review the evidence for clear error. Id. Similarly, the
trial court’s factual findings in a bench trial of an action at
law have the effect of a jury verdict and will not be set aside
unless clearly erroneous. Smalley v. Nebraska Dept. of Health
& Human Servs., 283 Neb. 544, 811 N.W.2d 246 (2012). In
reviewing a judgment awarded in a bench trial of a law action,
an appellate court does not reweigh evidence, but considers the
evidence in the light most favorable to the successful party and
resolves evidentiary conflicts in favor of the successful party,
who is entitled to every reasonable inference deducible from
the evidence. Hooper, supra.
ANALYSIS
McCully generally claims that the district court erred when
it found that McCully was not entitled to a commission for
the exchange of the Baccaro Ranch with the Pados Ranch.

170 	284 NEBRASKA REPORTS
McCully claims in particular that the district court clearly
erred when it found that no ready, willing, and able exchanger
was procured during the term of the listing agreement between
McCully and Baccaro; McCully contends the evidence showed
that Stine was found by McCully and that Stine was a ready,
willing, and able exchanger during the listing period on terms
acceptable to Baccaro. In response, Baccaro asserts that no
ready, willing, and able purchaser or exchanger was produced
during the term of the listing agreement and that therefore, the
district court correctly determined that McCully was not owed
a commission. For the reasons which follow, we determine
that the district court clearly erred when it found that no ready,
willing, and able exchanger was procured during the term of
the listing agreement, and therefore, we find that McCully is
entitled to a commission.
[5-8] We have stated that in determining whether a commis-
sion is due a broker, the court must look to the terms and con-
ditions of the listing agreement. Trimble v. Wescom, 267 Neb.
224, 673 N.W.2d 864 (2004). When the terms of the contract
are clear, a court may not resort to rules of construction, and
the terms are to be accorded their plain and ordinary meaning
as the ordinary or reasonable person would understand them.
Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011).
If a contract is unambiguous, the court will enforce the contract
in accordance with the plain meaning of the words of the con-
tract. Trimble, supra. Enforcement of a contract depends upon
the terms of the contract and the facts that are applicable to the
contract. Id.
The contract which controls our analysis with respect to
whether McCully is entitled to a commission is the listing
agreement quoted earlier in this opinion. By its terms, the
listing agreement between McCully and Baccaro began on
December 23, 2006, and expired on December 1, 2007. The
relevant portion of the listing agreement at paragraph 13(a)
provided that a commission would be payable to McCully if,
during the term of the listing period, McCully found a buyer
or exchanger who was ready, willing, and able to purchase
or exchange the property at the price and on the terms con-
tained in the listing agreement or for any other price and on

McCULLY, INC. v. BACCARO RANCH 	171
Cite as 284 Neb. 160
any other terms which Baccaro agreed to accept. The listing
agreement also provided at paragraph 13(e) that McCully
would receive a commission if within 180 days after the expi-
ration of the listing agreement, Baccaro sold or exchanged
the property to any person found during the term of the list-
ing or due to McCully’s efforts or advertising under the list-
ing agreement.
[9-12] We have previously stated that ordinarily, a real
estate broker who, for a commission, undertakes to sell land
on certain terms and within a specified period is not entitled to
compensation for his or her services unless he or she produces
a purchaser within the time limit who is ready, willing, and
able to buy upon the terms prescribed. Coldwell Banker Town
& Country Realty v. Johnson, 249 Neb. 523, 544 N.W.2d 360
(1996). Furthermore, we have stated:
“When the broker secures a prospective buyer who is
ready, willing, and able to purchase the subject property,
the person who hired the broker has received the service
for which he or she has contracted, and the broker’s right
to compensation cannot be impaired by either the subse-
quent inability or unwillingness of a purported owner to
consummate the sale on the terms prescribed.”
Agri Affiliates, Inc. v. Bones, 265 Neb. 798, 811-12, 660
N.W.2d 168, 179 (2003) (quoting Marathon Realty Corp. v.
Gavin, 224 Neb. 458, 398 N.W.2d 689 (1987)). A seller is
under no obligation to sell his or her property to a purchaser
procured by a broker. Fleming Realty & Ins., Inc. v. Evans, 199
Neb. 440, 259 N.W.2d 604 (1977). The fact, however, that the
seller exercises his or her right not to sell the listed property
to the purchaser produced by the broker does not relieve the
seller of his or her obligation to pay the broker the agreed-upon
commission. Id. See, similarly, Dworak v. Michals, 211 Neb.
716, 320 N.W.2d 485 (1982) (stating that broker is entitled
to commission where failure of completion of deal results
from wrongful act or interference of seller). Thus, although
Baccaro was under no obligation to sell or exchange its prop-
erty to Stine or any other purchaser or exchanger procured by
McCully, if Stine or another purchaser was actually a ready,
willing, and able purchaser procured by McCully during the

172 	284 NEBRASKA REPORTS
term of the listing agreement on terms acceptable to Baccaro,
McCully is entitled to its commission.
In Trimble v. Wescom, 267 Neb. 224, 673 N.W.2d 864
(2004), a real estate broker brought a breach of contract claim
to recover a commission on the sale of land. Because the
potential buyers were not able to go forward with an exchange
during the listing period and the sale was not consummated
during the protection period, the broker was not entitled to a
commission. In Trimble, we indicated that where the terms of
the listing agreement are clear and unambiguous, the broker is
entitled to a commission where he or she obtains a ready, will-
ing, and able buyer during the term of the listing agreement
or a sale of the property to such buyer is consummated during
the protection period provided for in the listing agreement. We
apply the framework in Trimble to the present case.
In the instant action, the exchange of the property occurred
in July 2008. A sale or exchange was not consummated during
the term of the listing agreement, which expired on December
1, 2007, or within the 180-day protection period provided
for in the listing agreement between McCully and Baccaro.
Therefore, the question before us is whether McCully found
a ready, willing, and able buyer or exchanger during the term
of the listing agreement. If McCully did obtain a ready, will-
ing, and able buyer or exchanger during the term of the listing
agreement, it was entitled to a commission.
[13] In explaining what is meant by a ready, willing, and
able buyer, it has been stated:
Each of the words “ready,” “willing,” and “able”
expresses an idea that the others do not convey. All three
of these elements must exist in the customer, in order
to entitle the broker to a commission. It is not sufficient
that the customer is ready and willing, but he or she must
also have the ability to carry out the loan, sale, purchase,
or exchange. So also, the procurement of a ready, will-
ing, and able purchaser by a broker involves not only a
showing that the purchaser has the financial ability to
complete the contract, but also that the purchaser is ready
and willing to purchase at a price and on terms prescribed
by the vendor.

McCULLY, INC. v. BACCARO RANCH 	173
Cite as 284 Neb. 160
12 C.J.S. Brokers § 225 at 295 (2004). The Iowa Supreme
Court has stated that “to be ready means to be ready to pur-
chase on such terms as are agreeable to the owner at the time.”
Jones v. Ford, 154 Iowa 549, 554, 134 N.W. 569, 571 (1912).
The Iowa Supreme Court has further stated that “to be willing
means to be willing to make the purchase upon such terms.” Id.
We have stated that a prospective purchaser is financially able
if he or she has the capability to make the downpayment and
all deferred payments required under the proposed contract of
sale. Fleming Realty & Ins., Inc. v. Evans, 199 Neb. 440, 259
N.W.2d 604 (1977).
The district court generally found that McCully failed to
find a ready, willing, and able buyer to purchase or exchange
the Baccaro Ranch at the price and on the terms that were
acceptable to Baccaro during the term of the listing agreement
or within the 180-day protected period and denied McCully’s
claim for a real estate commission. The district court did
not make specific factual findings as to the individual terms
“ready,” “willing,” or “able”; nor did it identify the items
which composed the terms acceptable to Baccaro. Even after
considering the evidence in a light favorable to Baccaro, we
nevertheless determine that the district court clearly erred when
it found that Stine was not a ready, willing, and able buyer dur-
ing the term of the listing agreement.
There is no question that McCully found Stine as a poten-
tial buyer or exchanger for the Baccaro Ranch during the term
of the listing agreement. There is no question that Stine was
an “able” purchaser during the term of the listing agreement.
He was financially able. Furthermore, he was ably positioned
because he had purchased the Pados Ranch in February 2007
and owned it when he offered to complete a straight exchange
of the Pados Ranch and the Baccaro Ranch. Given that Stine
was an “able” exchanger, the issue becomes whether Stine was
“ready” and “willing” to exchange his property for the Baccaro
Ranch during the term of the listing agreement on terms which
Baccaro agreed to accept.
Stine testified without contradiction that he remained agree-
able throughout the listing period to the terms contained in
the signed Real Estate Exchange Agreement he submitted to

174 	284 NEBRASKA REPORTS
Baccaro in September 2007. It is clear that Baccaro was agree-
able to the terms contained in Stine’s September 2007 agree-
ment, as evidenced, in part, by Vinton’s letter of October 31
to that effect. This letter further stated that Baccaro wished
to include two additional terms, to wit: setting the fair mar-
ket value of each of the ranches at $1,532,160 and providing
that the parties accept that the real estate would be conveyed
subject to the location of existing fences. The letter noted the
absence of a survey requirement and explained that there was
some question whether the fences were on proper legal bound-
ary lines on both ranches. With respect to the fence term in
the context of the sale of ranchland, Vinton testified that he
advised Baccaro to be vigilant regarding fences because he had
previously been involved with lawsuits over fences’ not being
on legal boundary lines.
Given 	Stine’s 	September 	2007 	Real 	Estate 	Exchange
Agreement and Baccaro’s October 31 counteroffer containing
two additional terms, the evidence shows that for purposes
of the listing agreement’s paragraph 13(a)(II), the “terms to
[sic] which Seller [Baccaro] agrees to accept” consisted of (1)
Stine’s September 6, 2007, Real Estate Exchange Agreement;
(2) a term regarding value; and (3) a term regarding fences.
If Stine, who was undisputably “able,” was agreeable to
these three items during the term of the listing agreement,
he was “ready” and “willing” and McCully was entitled to
a commission.
With regard to the first term, regarding the proposed Real
Estate Exchange Agreement, as noted, Stine testified that he
remained agreeable to his September 2007 offer and did not
withdraw it and there was no evidence that that document was
unacceptable to Baccaro; to the contrary, the October 31 coun-
teroffer embraced it.
With regard to the second term, concerning the value to
be placed on the ranches, the record indicates that there was
no real dispute about Baccaro’s additional term listing the
fair market values of the ranches for exchange purposes at
$1,532,160. This value approximates the amount that Stine
paid for the Pados Ranch in February 2007, as Vinton had
acknowledged in his October 2 correspondence on behalf

McCULLY, INC. v. BACCARO RANCH 	175
Cite as 284 Neb. 160
of Baccaro. Both Baccaro and Stine were agreeable to
this term.
With regard to the third term, pertaining to “fences,” there
was considerable testimony offered by Baccaro at trial and
much emphasis placed on it in Baccaro’s appellate brief.
Baccaro argues that because Stine had concededly expressed
concern about the actual acreage of the Baccaro Ranch, Stine
was not agreeable during the term of the listing agreement
to the fence term, which essentially provided that the parties
acknowledge that the fences might not coincide with the legal
boundaries. Baccaro asserts in its brief that “the primary reason
the Counteroffer was not accepted is because . . . Stine had
to have assurance of acreage which included knowing where
the fence lines were in connection with the described bound-
ary lines.” Brief for appellee at 23. Baccaro further contends
that Stine would not have participated in the exchange without
having received the GPS map prepared in January 2008. The
admitted testimony does not support this. On the contrary,
Stine testified that Garth Bullington wanted the GPS map pro-
duced because Garth Bullington, not Stine, had an issue with
the fences.
It appears from its findings that the district court accepted
Baccaro’s argument equating acreage and fences and that it
confused the topics of acreage and fences. However, the sub-
ject of actual acreage and the issue of fences are two separate
matters, and they should not have been conflated. The court
found that Stine was concerned as to the actual acreage of the
Baccaro Ranch, which was a nonissue, but failed to make a
finding regarding Stine’s view of the fence term, which was an
issue vis-a-vis being a ready and willing exchanger.
In his September 2007, offer, Stine provided the legal
descriptions for the Pados Ranch and the Baccaro Ranch, the
latter being described as approximately 3,010 acres. In his
testimony, Stine was asked if he needed to know the acreage
of the Baccaro Ranch before he traded for it. Stine answered
that he would not have been concerned with 3 or 4 acres more
or less than what was listed, but he “wanted some assurance
that [he] was getting essentially what [he] had bargained for.”
When questioned about the fence term, Stine testified that the

176 	284 NEBRASKA REPORTS
parties understood the properties would be conveyed subject to
the existing fences and “that [the fence term] was really some-
thing that maybe Garth or the Bullingtons wanted.” Stine’s
testimony is consistent with Vinton’s. The record thus indicates
that Baccaro was concerned with the issue of fences and that
although Stine was concerned with acreage, he was not hesitant
to exchange because of the fence term.
The evidence from the record shows that Stine was agreeable
to the term regarding fences. In his previous offers to Baccaro,
Stine had included a requirement that Baccaro conduct a sur-
vey of the Baccaro Ranch; a survey would have indicated,
inter alia, whether the fences were on the legal boundary lines.
However, Stine purposely and with reason did not include a
survey requirement in his signed September 2007 offer, which
included a legal description of the ranches and approximate
acreages and became the basis for the actual exchange.
Stine testified that he was aware of the corrective deeds
that Baccaro had completed with its only neighbor, the Dismal
River Ranch. These corrective deeds alleviated the most
problematic boundary issue. Kevin McCully testified at trial
that during the summer of 2007, after Stine had rejected
Baccaro’s straight-trade offer and before Stine’s September
2007 straight-trade offer, Kevin McCully took Stine for a drive
on four-wheelers around the Baccaro Ranch. Kevin McCully
testified that Stine wanted to see all of the boundary fences.
Kevin McCully testified that during the visit to the ranch,
Stine gave him the impression that he was satisfied with the
fence boundaries of the ranch. Because Stine was aware of the
corrective deeds with Baccaro’s only neighbor and dropped
the survey requirement from his September 2007 offer, and
because Stine toured the fence lines of the Baccaro ranch and
was satisfied, it is clear that Stine was agreeable to a term that
the property was to be conveyed subject to the location of the
existing fences.
The legal significance of the foregoing facts supports the
determination that Stine was a ready, willing, and able buyer
during the listing period. The fact that he signed the Real
Estate Exchange Agreement in September 2007 indicated that
he was ready and willing to enter into a binding agreement

McCULLY, INC. v. BACCARO RANCH 	177
Cite as 284 Neb. 160
with Baccaro. See McAllister Hotel, Inc. v. Porte, 98 So. 2d
781 (Fla. 1957) (stating that buyer was not ready and willing
when buyer declined to sign memorandum prepared by seller’s
attorney). See, also, East Kendall Inv. v. Bankers Real Estate,
742 So. 2d 302, 305 (Fla. App. 1999) (stating that nonbinding
letter of intent or “‘agreement to agree’” was insufficient to
demonstrate that buyer was ready and willing). The fact that
the exact legal descriptions of the properties to be traded were
contained in the September 2007 offer shows evidence of the
certainty of Stine’s readiness and willingness. See Kenerly
v. Yancey, 144 Ga. App. 295, 241 S.E.2d 28 (1977) (stating
that buyer was not ready and willing when sales contract and,
in particular, description of land were impermissibly vague).
But see Whitefield v. Haggart, 272 Ark. 433, 615 S.W.2d 350
(1981) (determining that vague description of property in offer
was enough to show buyer was ready and willing). The fact
that Stine dropped the requirement that a survey be conducted
from his September 2007 offer, which survey he had required
in his previous two offers, further indicated his readiness and
willingness. See Renfro v. Meacham, 50 N.C. App. 491, 274
S.E.2d 377 (1981) (determining that buyer was not ready and
willing when sales price in offer was contingent on conduct-
ing survey).
The essential terms of the exchange were assented to by
both parties during the listing period. See D. M. Kaufman
Assoc. v. Lake Co. Tr. Co., 157 Ill. App. 3d 926, 510 N.E.2d
919, 109 Ill. Dec. 851 (1987) (stating in brokerage commis-
sion case that agreement can be determined by assent and that
if terms objected to by sellers were incidental terms, rather
than essential terms, then prospective buyer was ready, will-
ing, and able). The words and acts of Stine showed that he was
a ready, willing, and able exchanger. See Dziga v. Muradian
Business Brokers, Inc., 28 Ark. App. 241, 773 S.W.2d 106
(1989) (determining in brokerage commission case that acts
and deeds of buyer can show readiness and willingness). The
deal Baccaro and Stine agreed to in June 2008 was in every
important respect what Stine had bargained for in September
2007, and indeed, the final Real Estate Exchange Agreement
signed in June 2008 is the very document Stine tendered in

178 	284 NEBRASKA REPORTS
September 2007. It has been observed that in the context of
evaluating whether a broker is entitled to a commission, the
contract of sale is evidence that contract terms were “satisfac-
tory and acceptable . . . elsewise the [parties] would not have
agreed to them.” Arthur R. Gaudio, Real Estate Brokerage Law
§ 145 at 201 (1987). The addition of an exchange value for
the ranches was an important term given the structure of the
deal, but was not contentious; the addition of the fence term,
while prudent, was unremarkable in the context of the sale or
exchange of ranchland.
Enforcement of a real estate brokerage contract depends
on the terms of the contract and the facts that are applicable
to the contract. See Trimble v. Wescom, 267 Neb. 224, 673
N.W.2d 864 (2004). Given the contract and the facts that are
applicable to it, it is clear based on the admitted evidence
that Stine was ready, willing, and able to exchange on terms
acceptable to Baccaro during the term of the listing agree-
ment. The district court clearly erred when it determined that
McCully failed to find a ready, willing, and able buyer or
exchanger during the term of the listing agreement between
McCully and Baccaro and erred when it dismissed McCully’s
amended complaint. Because McCully produced a ready, will-
ing, and able buyer to Baccaro during the term of the listing
agreement on terms agreeable to Baccaro, it was entitled to
receive a commission.
CONCLUSION
McCully found an exchanger during the term of the list-
ing agreement between McCully and Baccaro who was ready,
willing, and able to exchange on terms acceptable to Baccaro.
Therefore, the district court clearly erred when it found to the
contrary and determined that McCully was not entitled to a
real estate commission. Accordingly, we reverse the dismissal
and remand the cause for further proceedings to determine the
amount of the commission owed to McCully.
reverSed and remanded for
further proceedingS.
Stephan, J., not participating.