Buckingham v. Harris

• Decision Date: 18 November 1887
• Citation: 10 Colo. 455,15 P. 817
• Court: Colorado Supreme Court
• Parties: BUCKINGHAM v. HARRIS.

15 P. 817

10 Colo. 455

BUCKINGHAM v. HARRIS.

Supreme Court of Colorado

November 18, 1887

Commissioners' decision. Appeal from district court, Larimer county.

An action brought by Jesse Harris to recover his commission as a real-estate broker, claimed to have been earned by finding a purchaser for land belonging to Charles G. Buckingham defendant.

Dunning & Haynes, for appellant.

Rhodes & Love and E. A. Ballard, for appellee.

STALLCUP C.

Appellee was plaintiff below, and recovered judgment. The questions presented for consideration by the 20 errors assigned for the reversal thereof may be arranged as follows: First. Was the evidence sufficient to warrant the verdict and judgment? Second. Was there error in the instructions to the jury given by the court, or in the refusal to give those requested by appellant? Third. Did the court err to the prejudice of the appellant in the rulings on the introduction of evidence at the trial?

First to the evidence. As to the employment of appellee to sell this 480-acre tract of land, the appellee's evidence is direct to that effect. It is corroborated by the testimony of the witness Norvell, and the acts of appellee in working up a purchaser for the same, and in a measure is conceded by appellant. So, from the whole evidence, the jury was warranted in finding that the appellant, desiring to sell his land, had employed the appellee, a real-estate broker, to procure him a purchaser at a certain price per acre, on terms stated, for which service he had agreed to pay him a certain commission.

As to appellee's performance of his part of the undertaking, it is shown by the evidence that appellee did procure a purchaser in Mr. Rhodes, who was willing, anxious, and able to take the land on the terms given by the appellant, viz $40 per acre, subject to the lease upon it,--one-third cash, balance in one and two years, secured, etc. The evidence discloses but one reason for not consummating the sale; that was, the refusal on the part of appellant to complete the sale on his part. The only reasons given for this refusal were-- First, that appellee would not accept for his commission 2 1/2 per cent. on the amount of the sale; and, second, that appellant had concluded to hold the land for a higher price. As to the commission or compensation appellee was to receive for his services in procuring a purchaser, the evidence for appellee seems conclusive that it was to be 5 per cent. That is the amount stated by appellee to appellant at the time of the employment, and then tacitly acquiesced in by appellant, and afterwards, during negotiations for sale, was spoken of by appellant as the understood rate; so that the contract of employment, and the performance thereof by appellee, are shown by the evidence for appellee. There was some conflict in the evidence as between appellant and appellee, and his witnesses; but the jury's verdict settled that in favor of appellee, and we accordingly accept the facts. From these conclusions, it follows that appellee performed his part of the undertaking, and is entitled to his commission, the same as if the sale had been completed. In the case of Doty v. Miller, 43 Barb. 529, the law is stated that a broker or agent who undertakes to sell property for another for a certain commission, when he finds a purchaser willing to purchase at the price, has earned and can recover his commission, though the sale was never completed, if the failure to complete the same was in consequence of a defect of title, and without any fault of the broker or agent. In the case of Delaplain v. Turnley, 44 Wis. 31, the law is stated that if a broker, employed to sell property at a price satisfactory to his principal, produces a party ready to make the purchase at a satisfactory price, or to make an exchange satisfactory to the principal, the latter cannot relieve himself from liability to the broker for commission by a capricious refusal to consummate the sale. In the case of Moses v. Bierling, 31 N.Y. 462, the law is stated that, until the broker has faithfully discharged the obligation assumed in the contract, he is not entitled to the agreed commission; that a broker employed to make a sale is entitled to his commission when he produces a party ready to make the purchase, and the principal cannot relieve himself from liability by a capricious refusal to consummate the sale, or by a voluntary act of his own disabling him from the performance. In the case of Hart v. Hoffman, 44 How. Pr. 168, the law is stated that where a broker, employed to sell real estate, procures a party willing to purchase on the owner's terms, and the owner refuses to convey to the party so procured, the law will presume, in the absence of evidence to the contrary, that the person so procured was solvent, and pecuniarily able to perform the contract he offered to make.

As to the instructions given and denied. The following were the instructions given at the request of appellee, and excepted to by appellant: ' First. If the principal rejects the purchaser, and the broker claims his commission, he (the broker) must show that the person furnished by him (the broker) to make the purchase was willing to accept the offer precisely as made by the principal, and that he was an eligible purchaser, and such a one as the principal was bound in good faith, as between himself and the broker, to accept. Second. When an agent or broker, in good faith, has produced a purchaser who is acceptable to the owner, and able and willing to purchase on terms satisfactory to the owner, or as offered by the owner, he has performed his duty; and if, from any failure of the owner to enter into a binding contract, the sale is not completed, the agent may recover his commission.' There is no error in these instructions, as they are in accord with the law applicable to the case, as shown by the cases herein cited, and Finnerty v. Fritz, 5 Colo. 174; Smith v. Fairchild, 7 Colo. 510, 4 P. 757.

The following instruction was asked on the part of appellant: 'If the jury believe from the evidence that the plaintiff was authorized by the defendant to negotiate a sale of the premises in question upon certain terms, and the plaintiff, either knowing or having reason to believe that he could obtain a purchaser at those terms, sought to induce the defendant to accept a less price than that defendant had so proposed, the plaintiff by such conduct forfeits the right to any commission,'--which the court gave, with the following modification: 'But the burden of proof in this matter of defense is upon the defendant,'--to which modification the appellant excepted. We see no error in this modification. The charge imputes bad faith in some way, and thereby an avoidance of liability. Bad faith and fraud are not presumed. To defeat a liability thereby, they must be shown, and by him who so seeks to defeat the liability.

The following instruction was requested by appellant: 'The jury are instructed that a broker is not entitled to a commission until he has completed a valid contract of sale binding upon both the vendor and vendee; and if you believe, from the evidence, that no contract in writing or otherwise had been made, whereby the defendant could have enforced the collection of the money from the alleged vendee, you should find for the defendant,'--which instruction was refused; to which refusal appellant excepted, and it is strongly urged here that, by the law, appellant was entitled to this instruction. It is true that there are a few authorities, sustaining the view stated in the instruction, ( Richards v. Jackson, 31 Md. 250; De Santos v. Taney, 13 La. Ann. 151;) but such view is unreasonable, for, if such were the law, a broker could not consummate a sale, or made a binding contract of sale, so as to be entitled to commission, without the owner had vested him with power over the title. In the general employment of a broker to sell real estate, no such power is given: and it is not necessary, and should not be necessary, to give it, as it would open a channel for confusion and fraud. The owner does not wish to part with the control of his property; simply to obtain the aid of a broker to sell it. He employs a broker to procure a purchaser, retaining in himself the power to make binding contracts and conveyances. The terms of sale are sufficient for the broker. So, in the general employment of a broker, when he procures a purchaser able and willing to buy at the terms stated by the owner, he has performed his part; he has done all he can do, and all he was employed to do. The owner may decline to convey or complete the sale. He may so decline for the reason that he may get more by holding, and raising his price,...