37 Colo. 203 | Colo. | 1906
delivered the opinion of the court:
The complaint alleges that the president of The Denargo Land Company “placed with plaintiff for sale, upon such terms as might he agreed upon between defendant and the purchaser's thereof, certain real estate” situate in the then county of Arapahoe, and agreed to “pay plaintiff a commission of five per cent, on any sale or sales she might make ’ ’ of any of the platted portion of the property, “and as to the acre property, said defendant became liable to pay plaintiff a reasonable compensation for her services in finding a purchaser therefor. ’ ’ That she procured ‘ ‘ one I. B. Porter as a purchaser for all the remaining unsold portion of said land; that said Porter was ready, able and willing to buy the unsold portion of said land at and for the price fixed by the said deféndant;” that said Porter did agree to buy and said Hill, president of defendant, did agree to sell to the said I. B. Porter all the unsold portion of said land as aforesaid, for the price of six hundred thousand dollars. The second cause of action contains averments as to the employment and rate' of commission as in the first cause of action, and further avers that she procured Bennett & Myers as purchasers for 1411 lots; that said Bennett & Myers were ready, able and willing to buy said lots and to pay for the same at a price and upon terms which had been indicated by defendant were satisfactory, but that said defendant had refused to treat with the said Bennett & Myers or sell them said lots, or any portion thereof. She prays for judgment on the first cause of action for thirty thousand dollars, and upon the second cause of action for sixteen thousand dollars; in all, the sum of forty-six thousand dollars.
' The testimony discloses that the plaintiff and the officers of the defendant had several conversations and some correspondence with reference to the sale of the property in question, and that she induced I. B. Porter to negotiate with the officers of the company, and that the negotiations resulted in the signing of a contract by the terms of which Porter had the privilege of buying the property within a certain specified time', but that Porter failed to make the initial payment required by the contract. It further appears that at one time during- the negotiations Porter and the representatives of the company reached an agreement, and that Porter prepared a writing containing substantially all the terms of the agreement, but that when he presented it for signature, the officers of the company, although admitting that it was in accordance with the agreement of the previous meeting-, declined to sign it; and after many other writings were submitted and rejected, Hie one mentioned herein was signed. The document prepared by Mr. .Porter as containing the agreement is printed in the abstract, and provides that Porter, or his assigns, shall have the option to purchase the property at any time before June 30, 1889, for the sum of six hundred thousand dollars; fifty thousand, cash, to be paid at the time the purchasers agree to take the property, the balance to be paid in various sums, at various times, during a period of six years. He states that the paper was prepared during the month of November, 1888. This agreement, Porter says he was ready to sign, and able and willing to comply with' its terms if it had been signed. This is the agreement upon which the plaintiff bases her first cause of action ;• and she claims that as the seller and
We are of opinion that the plaintiff did not earn her commission, and that the court did not err in granting a nonsuit. In stating her contract of employment, she alleges that the property of the defendant was “placed with plaintiff for sale, upon such terms as might be agreed upon between the defendant and the purchasers thereof,” and that “the defendant agreed to pay her a commission of five per cent, upon any sale or sales which she might make;” and she alleges that I. B. Porter did agree to buy, and that the defendant did agree to sell to said-1. B. Porter, the property in question for the sum of six hundred thousand dollars. A broker employed to make a sale of property is entitled to a commission if, through his efforts, a sale is consummated. In this case no sale was consummated, but the plaintiff says that the reason the sale was not made is because the owner refused to make the sale to a purchaser she *had produced, who was ready, able and willing to take the property upon the terms and conditions agreed upon. Where a broker is employed to find a buyer for a: specified price, and produces to the owner one who is ready, able and willing to buy .upon the terms specified, and the owner refuses to convey, the broker is entitled to his commission; but here the broker did not produce a person who was ready, able and willing to buy. She produced a person who' was ready, able and willing to take an option, merely, upon the property, that is, he was willing that the owner should bind itself to convey the property to bim at any time within seven months, upon his making the initial payment and executing notes for the balance secured by deeds of trust. The plaintiff was
This is all the testimony given by Mr. Porter concerning his ability to perform his part of the proposed agreement. It very clearly appears that it was not Mr. Porter’s intention to buy the property except for the purpose of resale at an advanced price. The proposed contract contains these prO'visions: “And in case of sales made of any part of said lands during the life of said option, the proceeds of such sales shall be deducted from the purchase money to be paid by said Porter; and further, if said
The purpose Mr. Porter had in proposing the agreement is not material except as it may have a bearing in determining whether the plaintiff did or did not show by her testimony that she had produced a person financially able to comply with the. terms of the agreement. It was said in the case Coburn v. Seymour, 32 Colo. 430: “While it is true there seems to be some conflict of authority on the question of whether or not it is necessary for the broker .to prove the financial ability of the purchaser in those cases where the owner refuses to carry out the contract of sale, we are of opinion that the great weight of authority, and the well-considered cases on the subject, require that he make such proof, because he must show, before he is entitled to recover his commissions, that he performed those acts which, according to the contract of his employment, it was necessary for him to perform in order to become entitled to the compensation agreed upon.”
Applying the foregoing rule to- the facts of this ease, the plaintiff cannot recover, because the proof fails to establish the financial ability of Mr. Porter to comply with the terms of the proposed contract. In fact, his testimony rather negatives the idea that he was himself financially able to perform the contract; but, on the contrary, that he relied upon his ability to make a sufficient number of sales, during the
If the plaintiff was not entitled to show a verbal understanding differing from the one finally entered into, she cannot of course recover, because Porter failed to make the initial payment required by the written agreement.
The plaintiff should not recover upon her second cause of action. In the first place, her proposed purchasers, Bennett & Myers, are not shown to have been able to buy; in the second place, the defendant was in good faith dealing with a customer she had brought, and it was entirely proper and altogether honorable for the officers to refuse to consider their proposition until after negotiations with Porter, who was proposing to buy the entire property, were concluded. We are of opinion that the plaintiff has .wholly failed to establish the allegations of the com
Chief Justice G-abbert and Mr. Justice Campbell concur.