150 P.2d 315 | Wyo. | 1944
On September 22, 1939, the defendant, Paul T. Colbron, was the owner of what is called in the record the Aspen ranch, consisting of 312 acres of land, situated in Teton County, Wyoming. Its value as a "dude" ranch, according to the witness, Felix Buchenroth, was $45,000, the witness stating that Colbron had that much money invested in the land. The plaintiff, Claude O. Horton, was at that time and during all the times herein mentioned a real estate broker, licensed under the laws of this State. A few days prior to September 22, 1939, the plaintiff visited the Aspen ranch for the purpose of having it listed with him as such broker and a few days thereafter a contract was entered *271 into between the plaintiff and Paul T. Colbron, as follows, to-wit:
"Sept. 22, 1939.
"In consideration of the services, during the term stated, of C.O. HORTON the undersigned hereby employs him as sole and exclusive agent for the sale or exchange of the property described as Aspen ranch, 312 acres on Snake River, for the term of ______ days from date hereof, and agrees to pay said agent commission of Five per cent on the gross consideration of said sale or exchange, on the following terms:
"If, within 30 days after the expiration of said term, a sale or exchange is made to or with parties with whom said agent negotiated during said term and said agent shall have notified the undersigned, in writing, within 5 days after the end of said term, personally or by mail, of such negotiations the undersigned agrees to pay said agent the commission hereinabove provided.
(Sgd.) PAUL T. COLBRON, Owner.
"In consideration of the foregoing employment the undersigned agent agrees to use diligence in procuring a purchaser.
(Sgd.) C.O. HORTON. (Endorsement)
It is definitely understood that this listing is not binding excepting a buyer is produced by me.
(Sgd.) C.O. HORTON."
The contract was apparently signed by the plaintiff before he left the ranch, leaving it with Colbron's wife, and it apparently was subsequently signed by Paul T. Colbron when he sent it to the plaintiff in a letter which in part reads as follows: "I am very sorry *272 I was not at the ranch when you called a few days ago. I notice on the blank forms which you left for me to sign, and one of which I enclose herewith, that you desire to be employed as sole and exclusive agent. I hardly would care to do that, so have left that part blank. However, it will practically make no difference as far as you are concerned, for the place has not been listed with any other agent, and the chance of its being so listed is so small as to be negligible. Still, miracles do sometimes happen, and though the chance of a sale in the near future seems very improbable, it does exist. You will, of course, be fully protected if you produce a buyer, and the usual commission of 5% will be paid. * * * The price is $85,000." The contract thus entered into between the parties was in force and effect on May 29, 1941, as testified to both by the plaintiff and by the defendant Colbron.
Thereafter the plaintiff made what he calls "set-ups," consisting of pictures and the description of the ranch, took them with him to Los Angeles, California, where he had some business connections, and he mailed the set-ups or handed them personally to various persons and showed moving pictures thereof in California in addition to advertising them in the Los Angeles Examiner and the Los Angeles Times. He also took various parties, as the plaintiff testified, to or close up to the ranch, but on account of the price he could not interest anyone in the land. In the spring of 1940 the defendant Colbron reduced the price on the land to $70,000. During the fall plaintiff took one Chapen to the land. Colbron then reduced the land to the price of $60,000, but plaintiff could not interest Chapen in the land at that price. During the following winter plaintiff again showed the set-ups of the ranch in California by moving pictures either in the homes of parties or in the office of a business *273 connection which the plaintiff had at that place. About May 24, 1941, one C.C. Moseley, sole owner by himself and family of the Aircraft Industries Corporationed, appeared in Jackson, Wyoming, and called on tioned, apeared in Jackson, Wyoming, and called on one Lewis G. Gill, owner of the Log Cabin Saloon at Jackson, Wyoming, having been recommended to see Gill upon his arrival at Jackson. He was interested at that time, as he testified, in buying a small and inexpensive ranch for approximately $8,000 or $10,000. Gill introduced Moseley to the plaintiff Horton. For the four or five following days, according to the testimony, the plaintiff took Moseley to various places around Jackson, and on the 28th day of May, showed him the socalled McCormick ranch which Horton, as real estate broker, had for sale at the sum of $15,000 and which contained 319 acres. Moseley became interested in that ranch, but on return to Jackson it was found that the place had been sold.
The testimony of the plaintiff Horton, aside from facts already mentioned and leaving out matters of secondary importance, is in substance as follows: During the time that he was taking Moseley around the country, he mentioned, among other ranches, that he had the so-called Aspen ranch for sale. He had a talk with Mr. Moseley on the evening of May 28, or the morning of May 29, 1941, about going over to the Aspen ranch on the latter date. He told Moseley that he would go to the ranch and try to get the price down which at that time was $60,000. On the morning of the latter date he went over to the Aspen ranch, told Mr. and Mrs. Colbron that he had a very good cash prospect for a good ranch and that he thought that they had an excellent chance of selling it if the Colbrons would get the price down to where it belonged, somewhere around $50,000. He told them that he had shown *274 the McCormick ranch to the client on the day before, and that that ranch was about what Moseley wanted, but that he didn't know whether or not the latter would go as far as paying $60,000 for a ranch. "Q. Did you tell Mr. Colbron who your client was? A. I did, Sir. Q. Did you tell him who he was and all about him? A. I told him it was Major C.C. Moseley, who at that time was president of the Grand Central Air Terminal at Glendale, California." Colbron thereupon stated, "Mr. Horton, we are very anxious to sell and be sure and bring that client over. We will cut the price to $50,000.00 and don't let him get away because we really need to sell and don't overlook it." Plaintiff thereupon made a definite appointment to take Moseley over to the Aspen ranch that afternoon at 2:30. He returned to Jackson about noon. He met Moseley in front of the Log Cabin Saloon and told him that he had made an appointment at 2:30 that afternoon for Moseley to see the Aspen ranch. The latter asked plaintiff to have lunch with him in the Bluebird Cafe and tell him all about the matter. Plaintiff, however, wanted to find out whether or not he had some telegrams in regard to some other ranches which he might sell to Moseley, and he did not see the latter again during that day. He saw Lew Gill after he returned from the Aspen ranch and had a conversation with him. When he was asked about the conversation an objection was made and the objection was sustained. He was then asked, "Why was it you didn't go with Mr. Moseley and Mr. Gill and Mr. Buchenroth to the Aspen Ranch that afternoon? A. Because Mr. Gill told me had had been down to the bank — " An objection then made to this testimoney was sustained. He was asked again, "Now, why was it you didn't go and take Mr. Moseley to the Colbron ranch that afternoon? Don't testify to what anybody told you, just *275 say why it was you didn't go. A. Because Mr. Gill and Mr. Buchenroth took him over. Q. Did you know that? A. I knew it. Q. And at what time of the day did you get that information? A. In the afternoon, after lunch. It was approximately 1:00 o'clock that I knew they were going over. Q. Now, at that time was Mr. Gill assisting you and working with you and cooperating with you for the purpose of selling this ranch of Mr. Colbron's to Mr. Moseley? A. He was, Sir." He advised Gill, after returning from the Aspen ranch, that Colbron had reduced the price of the ranch to $50,000.
Lewis G. Gill, above mentioned, was a witness in the case. He testified that he was helping the plaintiff Horton in selling the Aspen ranch. He saw Mr. Moseley and Mr. Horton on the night of the 28th at his place; that they then discussed the Aspen ranch and other ranches; that the witness asked Horton if he had the Aspen ranch for sale and that Horton stated that he had and the witness asked, "Why don't you show Mr. Moseley that?" And the plaintiff Horton answered, that he would go over the next morning and make an appointment for Moseley to see the ranch; that Horton went over to the ranch the next day and saw the witness upon his return and told him that the ranch could be bought for $50,000 or less. The witness conveyed that information to Moseley. Moseley stated, "I think it is too much money. I don't want to put in that much money." The witness said, "It won't cost anything to go look at it," and Moseley stated, "All right, I will go look at it." That morning the witness went over to the Jackson Bank, of which Mr. Buchenroth is president, and discussed the sale of the ranch with Buchenroth. The latter called up Mr. Colbron and the witness and Mr. Buchenroth, in the former's car, took Mr. and Mrs. Moseley to see *276 the Aspen ranch that afternoon. Asked why Horton didn't go along, he answered, "I guess he wasn't invited. None of them suggested him going out." Before going out, Horton had told him and Mr. Moseley that he had an engagement to take Mr. Moseley over to the Aspen ranch that afternoon. The witness went out to the Aspen ranch as a go-between to help Horton in selling the Aspen ranch and to get Mr. Moseley settled in that country. Upon their return to Jackson in the evening, he told Horton that Mr. Moseley liked the place very much, that he thought he might buy it, but no agreement had been reached between the parties at that time. Later, about 8:00 o'clock that evening, Mr. Moseley came to him at his Club, asked him to get Mr. Buchenroth over there and Mr. Buchenroth thereupon phoned the Colbrons, who came in about 9:00 o'clock that evening and the sale of the ranch was finally consummated at the price of $45,000. The witness went out to find Mr. Horton but was unable to do so.
Mr. Buchenroth, above mentioned, was a witness for defendants in the case. He testified: "Mr. Lew Gill came to the bank and asked me whether I knew any ranches for sale. He explained he had a friend who was looking for a place; that Mr. Horton had taken the man out and showed him places but couldn't show him one that suited. I told him I knew of three places and I mentioned one of them was the Aspen ranch, and Mr. Gill said that the price was too high, that Mr. Moseley expected to spend between $20,000 and $30,000. I didn't think that the Aspen ranch could be bought for that. As a matter of fact, I knew it couldn't, but since there were two more places, I called Mr. Colbron up and asked him whether I could bring a man over there to see the place. I didn't mention any name, nor did I know Mr. Moseley before that *277 time. I made a date in the afternoon with Mr. Colbron to take Mr. Moseley over there after the bank closed. About 2:30 Mr. Gill, Mr. Moseley and Mrs. Moseley came to the bank and I went with them over to the Aspen ranch. We met Mr. Colbron there and showed him (Moseley) the place. Mr. Moseley went all over the place and asked Mr. Colbron the price. Mr. Colbron stated $55,000.00. Mr. Moseley offered $35,000.00. We talked for awhile there but since they were too far apart, nothing further was said and we went home. * * * Q. It was because Mr. Gill came to your bank that you called Mr. Colbron on the 'phone? A. Absolutely." Later, that evening, when he saw the parties in the Log Cabin Saloon, Mr. Moseley didn't want to go over $35,000 and Mr. Colbron didn't want to come down, finally Mr. Mosely offered $40,000 and Mr. Colbron came down to $50,000. That was around midnight, so the witness asked whether they wouldn't split the difference and get together at $45,000 which they finally did. In the meantime he had mentioned that no real estate agent was involved in the case, but Lewis G. Gill, who was present, stated that there might be an agent, namely Mr. Horton. Witness then asked Gill to call up Mr. Horton on the 'phone which he did, but didn't get him, and he thereafter sent Gill out to hunt Horton, but Gill couldn't find him and the deal was closed with the understanding on the part of Colbron that he was not to pay any commission. Paul Colbron stated that no real estate commission was involved and he asked Moseley if Horton had shown him the place and the answer was no.
The defendant, Paul T. Colbron, admitted in his testimony that the place was listed for sale with Horton and that the contract entered into by them was still in force and effect. He also admitted that the plaintiff was over at his place on the morning of May 29, *278 1941. He did not remember that he reduced the price of the farm to $50,000, but did remember that he would be glad to bargain with a client brought by him. "Q. What remarks, if any, did he (plaintiff) make? A. He remarked that he had a client for a cattle ranch in the valley whom he had been taking around the day before and he expressed much disappointment at failing to sell him a ranch on the other side of the river. He did not mention the client's name. Q. Did you make inquiry of Mr. Horton as to whether or not his client would be interested in purchasing your property? A. Not exactly but I urged him to bring the client to see the Aspen ranch even though it was not a cattle ranch. Q. What reply did Mr. Horton make to your inquiry about his bringing the client to the Aspen ranch? A. Mr. Horton replied that he thought it would be useless. Q. Why? A. Mr. Horton said that in the first place the Aspen ranch was not a cattle ranch and the client desired one, and in the second place the price I had quoted was so very much above the price the client desired to pay that it would be a waste of time to bring him. Q. State whether or not he finally agreed to bring this client. A. After repeated urging on my part he reluctantly agreed to do so." The witness later, during the afternoon or eevning of that day, found out the client's name, namely Mr. C.C. Moseley. Mr. Buchenroth phoned while he was talking to plaintiff. Mr. and Mrs. Moseley and Mr. Buchenroth came out to his place in the afternoon of the date last mentioned in Mr. Gill's car. The witness also testified to the sale as subsequently made. He asked Moseley if plaintiff was concerned in the deal, and Moseley replied that he was not, and that plaintiff had never mentioned the Aspen ranch to him. He sold the place for a smaller sum than that quoted to plaintiff partly because no commission was involved. *279
The witness C.C. Moseley, purchaser of the land, testified that the plaintiff Horton never mentioned the Aspen ranch to him and that he thought that Mr. Gill and Mr. Horton were acting independently, that he never heard of the Aspen ranch, until Gill told him that Buchenroth had said it was for sale, and that Gill suggested that he, the witness, should go to see the ranch, after he had talked with Buchenroth; that Colbron told him he had listed the ranch with plaintiff a long time ago, but that he would not pay him a commission, since plaintiff had nothing to do with selling the ranch.
I. Appellant contends that Mr. Buchenroth, and not the planitiff, produced the purchaser for his ranch, and was the procuring cause of the sale. The testimony is to some extent conflicting. The brief filed on behalf of the appellant is, in a number of important points, based on the theory that the testimony in his behalf is true. But that is contrary to the rules of appellate procedure. To determine the credibility of witnesses was within the province of the trial court, and we must give the evidence on behalf of the plaintiff, the successful party herein, every favorable inference which may reasonably and fairly be drawn therefrom. Willis v. Willis,
II. It is argued on behalf of the appellant that plaintiff did not act in good faith, and that he and Gill were working for Moseley rather than appellant. Great stress is laid upon the fact that Gill told Moseley, as testified to by Gill, that the Aspen ranch could be bought for $50,000 or less. It is contended that by reason of this statement plaintiff is not entitled to a commission. We are cited, as authority therefor, to Alford v. Creagh,
III. It is argued that there is no evidence that plaintiff used diligence, and he pleaded that plaintiff did not procure a purchaser within a reasonable time after entering into the written contract heretofore mentioned. The terms diligence and reasonable time are relative terms. What might be want of diligence and unreasonable time in one case might not be in another. Paul T. Colbron himself testified that the contract entered into in September, 1939, was still in effect on the day when the sale to Moseley was made. The question of diligence and reasonable time were, it would seem, thereby eliminated from the case
IV. Licenses as real estate broker were issued during 1939-1942 to Claude O. Horton, and introduced in evidence. Counsel for appellant claim that the record does not show that the plaintiff in this case is the same person to whom these licenses were issued. Plaintiff, whose name is Claude O. Horton, testified that he was a licensed real estate agent or broker in Wyoming during 1939 to 1942, both inclusive, and while he was on the witness stand, he identified the licenses above mentioned, and they were introduced in evidence. Being in his possession, we think the inference was permissible that he was the licensee therein mentioned.
Finding no reversible error in the record, the judgment of the trial court is affirmed.
Affirmed.
KIMBALL, C.J., AND RINER, J., concur. *285