42 Colo. 1 | Colo. | 1908
delivered the opinion of the court:
This action is by a broker to recover commissions for the sale of defendants’ real estate. Trial before the jury resulted in favor of plaintiff, and defendants appeal.
The court should have granted defendants’ motion for nonsuit, made at the close of plaintiff’s case, and renewed after defendants produced their evidence. There is some doubt whether, under the evidence, the contract of employment was established. Plaintiff asked and obtained from the owners the price at which they were willing to sell, and it is uncertain whether anything more was done in that direction In Castner v. Richardson, 18 Colo. 496, it was said this does not give rise to the relation of principal and agent between the parties. But for the purpose of the opinion it may be assumed that the contract of employment was proved. Let ns, then, examine the evidence to see if plaintiff, under the law applicable to this case, earned a fee.
We first state the testimony of plaintiff himself. A church society wanted to buy this kind of property. Plaintiff interviewed an officer of the church, and called his attention to defendants ’ city lots, and
Some of the officers or members of the church were called by plaintiff as his witnesses, and they testified that for some reason the church officers, who had the power to buy, refused to make the purchase of the lots through plaintiff, and never made him any offer for them, and refused to deal with him, but bought through another agent. Plaintiff was not the efficient and procuring cause of the sale, and, on his own showing, was not entitled to a commission. The nonsuit should have been granted when his evidence was in.
Throughout the negotiations between the church and the various agents, there is not a word of evidence that defendants interfered therewith, or favored one agent as against another. They remained neutral throughout. Merritt was paid his commission by defendants for making the sale before this action was brought. There is nothing tending to impeach the entire good faith of defendants. Under the uncontradicted evidence of both parties, plaintiff did not procure a purchaser, able, willing and ready to buy at the price for which he might sell. Indeed, his party absolutely refused to buy through, or deal with, him, and for such refusal defendants are not to blame. We do not say that the officers, of the church were guilty of the improper conduct which plaintiff charges against them; but, if they were, defendants are not, in any way, connected therewith. In two respects there was a failure of proof: First, plaintiff was not the efficient and procuring cause
The judgment is reversed and the cause remanded, with instructions to dismiss the action.
Reversed.
Chief Justice Steele and Mr. Justice Gabbert concur.