Carlsen v. Hay

• Decision Date: 10 January 1921
• Docket Number: 9748.
• Citation: 69 Colo. 485,195 P. 103
• Parties: CARLSEN v. HAY et al.
• Court: Colorado Supreme Court

195 P. 103

69 Colo. 485

CARLSEN v. HAY et al.

No. 9748.

Supreme Court of Colorado

January 10, 1921

Error to District Court, Larimer County; George H. Bradfield Judge.

Action by E. B. Hay and another against C. C. Carlsen. Judgment for plaintiffs, and defendant brings error.

Affirmed.

Paul W. Lee and George H. Shaw, both of Ft Collins, for plaintiff in error.

Stow Stover & Mantz, of Ft. Collins, for defendants in error.

SCOTT J.

This action was by the defendants in error to compel the specific performance of an alleged contract for the sale of real estate.

The defendants in error, plaintiffs below, lived in Larimer county, Colo., and the plaintiff in error resided at Loup City, Neb. The land had been listed for sale by the defendant with Carl Anderson, a real estate agent at Ft. Collins, Colo.

The contract relied upon grew out of certain letters and telegrams exchanged between Anderson and defendant Carlsen. These were as follows:

'Ft. Collins, Colo., June 21, 1918.

'C. C. Carlsen, Loup City, Neb. Have offer of seven thousand two hundred fifty dollars for farm you to pay nineteen eighteen water assessments and keep present cash rent can pay thirty two hundred fifty dollars down balance on or before five years at six per cent optional payment wire answer immediately.

'Carl Anderson.'

Telegram from Carlsen to Anderson:

'Loup City, Neb., June 22, 1918.

'Carl Anderson, S. 581, Ft. Collins, Colo. Cannot accept offer made but for immediate closing will take thirty five hundred down balance as indicated pay nineteen eighteen water assessment and retain all rent from the land this year deed would have to be subject to present lease and I really feel land is offered too cheap.

C. C. Carlsen.'

Telegram from Anderson to Carlsen:

'Ft. Collins, Colo., June 24, 1918.

'C. C. Carlsen, Loup City, Neb. Do not understand price made in telegram wire exact terms and price.

Carl Anderson.'

Letter from Carlsen to Anderson:

'Loup City, Neb., June 22, 1918.

'Carl Anderson, Ft. Collins, Colo.--Dear Sir: Your telegram advising me that you have an offer of $7,250 for my farm near Wellington is just received and I have wired you that I will sell it for $7,500, $3,500 down, balance in a mortgage to me for $4,000, due on or before five years, at six per cent. interest from date, I to pay the water assessment for 1918, and retain all rents for this year from the farm, and land to be sold subject to possession under the lease now outstanding.

'As stated in my telegram I really feel that this is selling the farm for less than it is worth, but because it is a long way from me and I cannot look after it personally, will let it go for the amount stated, if sold right away. I would not want this deal to drag along, and if you cannot close with your prospective purchaser immediately call it off, and the price will not be a cent less than we asked, to wit, $8,000.00, and I really think I shall feel better if you write me that you did not sell it than if you advise that the place has been sold.

'Thanking you for your immediate advices concerning this, I am

'Yours very truly,

C. C. Carlsen.'

Letter from Carlsen to Anderson:

'Loup City, Neb., June 24, 1918.

'Carl Anderson, Ft. Collins. Colo.--Dear Sir: I have just received your telegram stating that you did not fully understand mine of Saturday, and I am writing you to-day that I will take $7,500 for immediate closing, and my letter of the 22d will be received about the time you will get this telegram.

'As stated in my letter of that date, I am not at all anxious to sell the land, but because of the long distance it is off, will give you a chance to sell it to your buyer, if he wants it, and unless you can close this immediately, do not make the offer at all, as my price is and will be $8,000, as before stated.

'Yours very truly.

C. C. Carlsen.'

Telegram from Carlsen to Anderson:

'Loup City, Neb., June 24, 1918.

'Carl Anderson, S. 581. Ft. Collins, Colo. My offer for immediate acceptance is seventy five hundred dollars thirty five hundred cash now mortgage for five years for balance at six per cent. interest from date possession to be given under lease but rentals for nineteen eighteen reserved by me and I will pay the nineteen eighteen water taxes you will have letter tomorrow explaining this.

C. C. Carlsen.'

Telegram from Carlsen to Anderson:

'Loup City, Neb., June 26, 1918.

'Carl Anderson, Ft. Collins, Colo. Call off all negotiations have sold land.

'C. C. Carlsen.'

Telegram from Anderson to Carlsen:

'Ft. Collins, Colo., June 26, 1918.

'C. C. Carlsen, Loup City, Neb. Sold farm early yesterday morning. Sent contracts for your signature and deposited five hundred dollars earnest money to your credit. Too late now to stop deal as per your telegram. Send abstract deed and contract at once.

'Carl Anderson.'

It was beyond the power of Carlsen at the time of trial to specifically perform, and the court gave judgment in damages in the sum of $500, which judgment is now before us for review.

It is contended that Anderson, the agent, was simply an agent or broker to find a purchaser, and had no authority to execute a written contract of sale binding the landowner, and the case of W. T. Craft Realty Co. v. Livernash, 27 Colo.App. 1, 146 P. 121, and many...