15 Colo. 286 | Colo. | 1890
Merritt & Grommon brought this suit in 1886 against George Brand, to recover a sum of money which they alleged to be due them for services rendered in the procurement of a purchaser for certain property which Brand had placed in their hands for sale.
There are not many questions raised and discussed by counsel for plaintiff in error, although everything of importance is considered in his brief.' The errors on which he relies may be properly grouped in three divisions.
It is contended that the judgment cannot be maintained because it was rendered upon the basis of the value of the services rendered by the plaintiffs, computed upon the price for which the property was sold. It is said that as plaintiffs sued for a specific sum, and sought to recover upon a definite contract, they were limited to a recovery upon the contract as they averred it, and were debarred any relief upon the basis of the value of the services rendered. This contention might possibly be true, were it apparent from either the abstract or the record- that the plaintiffs had declared upon a specific contract which they had failed to prove, or the evidence established the existence of such a contract. The trouble, however, is that there were no written pleadings in the justice’s court, where the case originated, and none were filed in the superior court, where it was subsequently tried. It is therefore impossible to determine whether the suit was broright upon any such hypothesis or whether the plaintiffs should be held entitled to recover only upon due proof of it. The record itself is equally barren of testimony establishing a contract upon which the plaintiffs could recover, unless they made proof of the value of their services as rendered. Under these circumstances, the evidence as to the value was properly admitted, and judgment upon that basis properly entered by the court.
The plaintiff in error likewise contends, by several errors assigned, that, in a suit by real-estate brokers to recover commissions earned by the procurement of a purchaser to whom the property is not ultimately sold, they are bound
The only other error which has been urged is that the case shows that the property had been sold by another agent prior to the time of the negotiation of the sale by the plaintiffs. It is contended that this fact debars the plaintiffs’ recovery, upon the principle that where property is placed in the hands of several brokers for sale, to the knowledge of them all, any one of the brokers assumes the risk of having his claim to compensation defeated by a sale made by another broker before he procures a purchaser. It is wholly unnecessary to determine the accuracy of this legal proposition, for the court has found, as a matter of fact, that no such sale was made prior to the time the plaintiffs found a purchaser ready, able and willing to purchase upon the specified terms, and notified the owner. The evidence
There being no error manifest in the record, the judgment should be affirmed.
Bioiimobdd and Need, CC., concur.
Por the reasons stated in the foregoing opinion the judgment below is affirmed.
Affirmed.