Babcock v. Merritt

• Decision Date: 12 October 1891
• Citation: 27 P. 882,1 Colo.App. 84
• Parties: BABCOCK v. MERRITT et al.
• Court: Colorado Court of Appeals

27 P. 882

1 Colo.App. 84

BABCOCK v. MERRITT et al.

Court of Appeals of Colorado

October 12, 1891

Appeal from superior court of Denver; MERRICK A. ROGERS, Judge.

Action by Elmer W. Merritt and another against Mollie E. Babcock for commissions for the sale of defendant's property. Judgment for plaintiffs. Defendant appeals. Reversed.

Patterson & Thomas, for appellant.

Doud &amp Fowler, for appellees.

REED J.

This was an action brought by appellees, Merritt & Grommon against Mollie E. Babcock to recover commissions as real-estate brokers upon an alleged sale of property of appellant in the city of Denver. Trial to a jury. Verdict and judgment for plaintiffs (appellees) for $237.50. There is no important conflict in the testimony. At the close of plaintiffs' evidence motion for a nonsuit was made on behalf of the defendant, which was disallowed by the court. The right to recover was based upon the testimony of plaintiffs, which was not seriously controverted by the defense.

The first important question to be determined is one of law,--whether, upon the testimony of the plaintiffs uncontradicted, they were shown to have earned and to have been entitled to a commission. The following facts were established by the evidence: In the fall of 1885, Mr. Merritt met appellant, who said she was quite anxious to sell the property; that the price was $7,500, but, if an offer of less was made, it might be submitted to her through her agent. He says: "I told her that I had a party at that time who had been figuring on the property, that I had already shown the property to, and that I hoped to complete a sale," etc. Another interview was had two or three weeks later. "Mrs. Babcock asked me if I had yet completed the sale to this party I had been figuring with before. I told her that I had not yet succeeded in completing the sale, but that I still had the party in tow, and was trying to sell to them." On the 1st of January, 1886, witness formed a partnership with Mr. Grommon, and at some subsequent time again saw appellant, and informed her of the partnership told her "that we were endeavoring to sell her property had been advertising it, and were trying to complete a purchase or sale, and that we should use every means in our power;" that he personally never had any further conversation with her. The party referred to by the witness as being the one to whom he supposed he could sell the property was a Mr. J.M. Tompkins, a resident of Cheyenne. The last interview between Merritt and appellant seems to have been in the latter part of February, 1886. On the 29th day of April following, by an arrangement and trade made between Mr. Tompkins and appellant, Mr. Tompkins became the owner of the property. Mr. Merritt had shown the property to Mr. and Mrs. Tompkins with a view of renting it to him. This was in the latter part of February or early part of March. It appears that while looking through the house for the purpose of renting there was some talk of the possibility of his purchasing it at some subsequent time. He wanted to know if plaintiff thought the owners would take in exchange some property which he owned in Cheyenne. He was told that he thought not; that the owner wanted the money, etc.; that he tried to get an offer or proposition from Tompkins to trade for or purchase the property, but none was made; that Tompkins said that he would rent it for a month, and perhaps he would make a proposition to purchase; that was the last and only conversation he had regarding the sale. On cross-examination, plaintiff said that he tried to get an offer, but did not succeed. There is no evidence to show either that the appellees were ever authorized to trade the property, or sell for anything but cash. It is established by the evidence, and uncontradicted, that the price of the property was $7,500, and that the lowest offer that would be entertained was $7,000 net, or clear of all commissions of agents. It is also shown that no talk or conversation had between appellees and Tompkins in regard to the probability of a trade of property was communicated by plaintiffs to the defendant. It is also shown that the offer of $7,000 cash net for the property would not be entertained, unless the sale was made and the transaction closed before appellant left Denver for Omaha, which was to occur, and did, a day or two after the last interview. It appears that some time during the month of March or early part of April the agent of appellant applied to Mr. Grommon to learn the name of the party who had talked of trading for the property, and was informed that it was Mr. Tompkins, who was renting the property, and who had an office in Cheyenne. This appears to have been the only participation of appellees in the transaction subsequent to the facts stated above. It is shown by the testimony of Mr. Merritt that neither he nor his partner further participated in nor had any knowledge of the dealings between appellant and Mr. Tompkins until some time subsequent to the transfer of the property, when he learned the fact of the sale from the county records. After learning the fact, he addressed the following letter to appellant: "Denver, Colo., May 19, 1886. Mrs. M.E. Babcock, Omaha, Neb.--Dear Madam: We are pleased to see by the records of Arapahoe county that you have sold your property at No. 277 Broadway to Mr. J.M. Tompkins, whom we had the pleasure of interesting in the purchase, first through his wife, in November of last year, soon after you were pleased to place it in my hands for rent and sale, and afterwards Mr. Tompkins himself. We see by the records that the price which you received for the place was $7,000, and we are glad we succeeded in securing a good customer. Our commission is regular board rates, viz., 5% on first $2,500, and 2 1/2% on excess, making amount due us of $237.50, which please remit us at once, and oblige yours, truly, MERRITT & GROMMON. By...