10 Colo. 455 | Colo. | 1887
Appellee was plaintiff below, and recovered judgment. The questions presented for consideration by the twenty errors assigned for the reversal thereof may be arranged as follows: First. Was the evidence sufficient to warrant the verdict and judgment? Second. Was there error in the instructions to the jury given by the court, or in the refusal to give those, requested by appellant? Third. Did the court err to the prejudice of the appellant in the rulings on the introduction of evidence at the trial?
First, to the evidence. As to the employment of appellee to sell this four hundred and eighty acre tract of land, the appellee’s evidence is direct to that effect. It is corroborated by the testimony of the witness Nor veil, and the acts of appellee in working up a purchaser for the same, and in a measure is conceded by appellant. So, from the whole evidence, the jury was warranted in finding that the appellant, desiring to sell his land, had employed the appellee, a real estate broker, to procure him a purchaser at a certain price per acre, on terms stated, for which service he had agreed to pay him a certain commission.
As to appellee’s performance of his part of the undertaking, it is shown by the evidence that appellee did procure a purchaser in Mr. Rhodes, who was willing,' anxious and able to take the land on the terms given by the appellant, viz., $40 per acre, subject to the lease upon it,— one-third cash, balance in one and two years, secured, etc. The evidence discloses but one reason for not consummating the sale; that was, the refusal ou the part of
As to the instructions given and denied. The following were the instructions given at the request of appellee, and excepted to by appellant: “'First. If the principal rejects the purchaser, and the broker claims his commission, he (the broker) must show that the person furnished by him (the broker) to make the purchase was willing to accept the offer precisely as made by the principal, and that he was an eligible purchaser, and such a one as the principal was bound in good faith, as between himself and the broker, to accept. Second. When an agent or broker in good faith has produced a purchaser who is acceptable to the owner, and able and willing to purchase on terms satisfactory to the owner, or as offered by the owner, he has performed his duty; and if, from any failure of the owner to enter into a binding contract, the sale is not completed, the agent may recover his commission.” There is no error in these instructions, as they are in accord with the law applicable to the case as shown by the cases herein cited, and Finnerty v. Fritz, 5 Colo. 174; Smith v. Fairchild, 7 Colo. 510.
The following instruction was asked on the part of appellant: “If the jury believe from the evidence that the
The following instruction was requested by appellant: “The jury are instructed that a broker is not entitled to a commission until he has completed a valid contract of sale, binding upon both the vendor and vendee; and if you believe from the evidence that no contract in writing or otherwise had been made, whereby the defendant could have enforced the collection of the money from the alleged vendee, you should find for the defendant,” — which instruction was refused; to which refusal appellant excepted, and it is strongly urged here that, by the law, appellant was entitled to this instruction. It is true that there are a few authorities sustaining the view stated in the instruction (Richards v. Jackson, 31 .Md. 250; De Santos v. Taney, 13 La. Ann. 151); but such view is unreasonable; for, if such were the law, a broker could not consummate a sale, or make a binding contract of sale, so as to be entitled to commission, without the owner had vested him with power over the title. In the general employment of a broker to sell real estate, no such power is given; and it is not necessary, and should not be necessary, to give it, as it would open a channel for confusion and fraud. The owner does not wish to part with
As to the rulings of the court at the trial. It is assigned and argued that the court erred in admitting the evidence of the appellee and the witness Norvell as to the value of services in the sale of real estate, and the customary charges and commissions upon such sales. It is alleged in the complaint that, by the terms of the employment, appellant agreed to pay five per cent. This evidence showed that the customary rate was five per cent. The admission of evidence so variant from the allegations of the complaint is urged here as cause for
It is assigned and argued that the court erred in admitting the testimony of the witness Rhodes about the letters from Doty, and in refusing a rule on witness Rhodes to produce the letters. The testimony in this regard was as follows: (By appellant’s counsel.) “ Question. Mr. Rhodes, were you acting for yourself, on your own behalf, in making this purchase; were you acting for.yourself or somebody else? Ansiver. I was acting for myself in a certain sense. I can explain that if you wish it explained. Q. Well, sir, I would like to have it explained. A. Well, we bought some lands here, Mr. Doty and myself, west of town, and were willing to buy ■some more if we thought we could get some that would pay. I had an arrangement with Mr. Doty by which I could get the money by drawing on him in New York to .pay for land that I would see fit to buy and thought was reasonable, leaving it to my judgment to say whether it should be purchased or not. Q. Was this arrangement in writing, Mr. Rhodes? A. I think I had some letters frorn Mr. Doty to that effect, and Mr. Doty was here
In rebuttal, over the objections of appellant, certain questions were answered by appellee Harris as follows: “ Question. Did you state to Buckingham at the time of this first conversation with him that you could not sell the land subject to the lease? Answer. No, sir; I think not. I said to him that it would be difficult to sell it subject to the lease. Q. When did Rhodes first offer you $40 an acre? A. After we arrived at Boulder, at Brainard’s Hotel. Q. The defendant testified that you offered him $37.50 per acre instead of $40. A. I offered him $40, and he remarked that $960 was a good deal of commission, and he wanted me to accept two and one-half per cent. I refused to do so. Q. Did you have any conversation with him at the house about his taking $37.50 per acre? A. There was nothing; I said nothing in regard to $37.50 at his house.” It is urged here for appellant that these questions and answers were not admissible in rebuttal, for the reason that they were of the premises previously gone over in chief, and that the court erred in admitting the same. It will he seen that they were in the main responsive to, and contradictory of, independent and affirmative statements made by appellant in his testimony of matters not previously disclosed, and impossible of contradiction except in rebuttal. Besides, it is always within the discretion of the court to admit, in rebuttal, evidence which in strictness should have been produced in chief. Smith v. Mayer, 3 Colo. 210.
The judgment should be affirmed.
We concur: Macon, 0.; Rising, 0.
For the reasons given in the foregoing opinion the judgment is affirmed.
Affirmed.