David Berry (defendant) hired real estate broker Charles Tingey (defendant) to find a buyer for a property. The listing agreement provided that Berry would accept an offer produced by Tingey from a ready, willing, and able buyer to purchase the building, and that commission would be paid in full at the close of escrow. The agreement further authorized Tingey to cooperate with other brokers with whom commission would be shared. Tingey entered into an agreement with Steve Schmidt & Co. (plaintiff), whereby Schmidt would assist in finding a buyer, and if successful, would split the commission with Tingey. Acting personally, Steve Schmidt thereafter offered to buy the building, producing evidence that he was experienced in the purchase of large properties and was able to complete the purchase. Berry rejected the offer and presented a counteroffer with additional terms that had not been included in the listing agreement. Schmidt rejected the counteroffer and reiterated the initial offer. Berry refused to sell unless his additional terms were included in the sales contract. Steve Schmidt & Co. brought suit seeking its share of the commission under the listing agreement. The court granted summary judgment in Schmidt’s favor. Berry appealed.