27 Colo. App. 467 | Colo. Ct. App. | 1915
rendered the opinion of the court.
For the purposes of this opinion, Frank B. Davis will be called plaintiff, and George A. Starbird defendant, as in the trial court. Plaintiff brought suit on the following written instrument, executed and delivered by defendant:
“This is to certify that there is due F. B. Davis from me as commission on account of a contract of even date herewith between myself and Proctor Bros, of Verde, Colorado, the sum of eight hundred seventy-five dollars payable at the rate of 2% per cent on all sums, whether cash or property, received by me on account of said contract. Whenever said contract is cancelled or waived by me I agree to pay any unpaid balance due on this obligation, at once.
In token whereof witness my hand and seal this 30th day of April, A. D. 1910.
Geo. A. Starbird (Seal).”
Plaintiff was a real estate agent, and was employed by defendant to procure a purchaser for certain lands, cattle and other property, owned by defendant. Plaintiff produced purchasers satisfactory to and accepted by defendant, in Proctor Brothers, and the “contract of even date” mentioned in the instrument sued on was a written contract of purchase and sale entered into by and between the defendant and Proctor Brothers. Among other things it provided that Proctor Brothers take immediate possession of lands, cattle, horses and other property of defendant, and manage the same, with power to sell the personal property as provided
“We mutually agree to release one another from this agreement.
George A. Starbird,
Proctor Brothers.”
Defendant admitted the execution and delivery of the instrument on, but testified that it was understood between him and the plaintiff that the commission earned was to be paid only out of the moneys received or for property sold under the terms of the contract, and that nothing had been received by him; but his own testimony tended to show and would support a finding that he did receive from Proctor Brothers, or otherwise took and disposed of and retained proceeds from, a portion of the stock which, under the contract, they had a right to sell and apply on the purchase price. Plaintiff did not, on the trial, contradict defendant’s testimony as to the understanding or agreement that the commission was to be paid to him out of cash or property received by defendant under the contract; so that will be taken as admitted. In that respect the written agreement and the oral testimony agree.
It is perfectly clear from the contract sued on, as supplemented by the oral testimony, that plaintiff was willing to accept his commis.sion in installments, as paid on the contract of purchase and sale, provided defendant should not
Judgment affirmed.
