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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 94-513
LAWRENCE P. MCMANUS
v.
ROSEWOOD REALTY TRUST,
PATRICIA LARSON-KULAK, TRUSTEE
October 8, 1998
Tober Law Offices, P.A., of Portsmouth (Heidi E. Shealy on the brief and orally), for the plaintiff.
Coolidge Professional Association, of Somersworth (Brian R. Barrington on the brief and orally), for the defendant.
MEMORANDUM OPINION
BROCK, C.J. The defendant, Rosewood Realty Trust, appeals the decision of the Superior Court (Coffey, J.) awarding the plaintiff, Lawrence P. McManus, an auctioneer's commission for his services in the auction of the defendant's property. We reverse and remand.
On September 23, 1987, the plaintiff conducted an auction of a piece of commercial property that the defendant owned in Rye. The buyer never closed on the property, however, because he discovered that the soil and ground water were contaminated with toxic substances.
The plaintiff sued the defendant to recover his auctioneer's commission, relying on section eight of the auction contract:
The seller has good and clear title to all property to be sold . . . . The property will be sold free and clear of all liens (recorded, unrecorded) and encumbrances at closing. If the Seller cannot clear property by and before closing, the full commission will be due and owing.
The plaintiff maintained that because the property was contaminated with toxic waste, the defendant did not have "good and clear" title. The trial court agreed and awarded the plaintiff a $47,900 commission. This appeal followed.
On appeal, we uphold "the findings and rulings of the trial court unless they are lacking in evidential support or tainted by error of law." Public Serv. Co. of N.H. v. Town of Bow, 139 N.H. 105, 107, 649 A.2d 65, 66 (1994) (quotation omitted).
The issue before us is whether the presence of contaminants on the defendant's property destroyed "good and clear" title. "Good" title is synonymous with "marketable" title -- one that is "free from any reasonable objection of a reasonable purchaser." North Bay Council, Inc. v. Bruckner, 131 N.H. 538, 544, 563 A.2d 428, 431 (1989) (quotation omitted). Even if property is contaminated with toxic substances, the title to that property may be "free from any reasonable objection of a reasonable purchaser." Id.; see also 14 R. Powell & P. Rohan, Powell on Real Property