Castner v. Richardson

• Decision Date: 29 May 1893
• Parties: CASTNER v. RICHARDSON.
• Court: Colorado Supreme Court

33 P. 163

18 Colo. 496

CASTNER v. RICHARDSON.

Supreme Court of Colorado

May 29, 1893

Error to Arapahoe county court.

Action by Charles H. Castner, real-estate broker, against Cyrus G Richardson, for commissions. Action commenced before a justice of the peace. There being no written pleadings, the nature and cause of the action, as well as the grounds of defense, must be ascertained from the evidence. On appeal to the county court a trial was had, resulting in a finding and judgment for the defendant, Richardson. The plaintiff Castner, brings the cause to this court by writ of error. The facts sufficiently appear in the opinion. Affirmed.

Syllabus by the Court

1. To entitle a real-estate agent to commissions, a contract of employment is necessary. This is as true of an agency to find a purchaser as of an agency with power to sell.

2. When a broker asks and obtains from the owner the price at which he is willing to sell certain real estate,--this, without more, does not establish the relation of principal and agent between the owner and the broker.

3. When an action is tried by the court without a jury, the court is the judge of the credibility of the witnesses whom he sees and hears, and of the weight of the evidence which they give and, where the evidence is conflicting, it is not the province of an appellate court to reverse findings of fact.

4. By the statute of frauds as amended in 1887, a binding contract for the sale of real estate cannot be executed by an agent unless the agent be authorized by writing.

5. Where the owner merely states to a broker, not employed as his agent, the net price which he will accept within a limited time, and the broker procures an offer of such price within such time, but does not procure the execution of a binding contract, nor a purchaser ready to pay the purchase price within the time limited, and the owner refuses to allow further time, the broker cannot recover commissions.

Hoyt & Brice, for plaintiff in error.

Charles H. Burton, for defendant in error.

ELLIOTT J.

1. To entitle a real-estate agent to commissions, a contract of employment is necessary. The term 'commissions,' thus used, means the amount allowed or paid to an agent or broker employed to manage the affairs of another as compensation for such services. Where, as in this case, the employment is denied, the relation of principal and agent must be affirmatively established by a preponderance of the evidence, though such relation may be implied from such facts and circumstances as satisfactorily establish its existence. This is as true in respect to an agency to find a purchaser as of an agency with power to sell. Whart. Ag. § 330.

2. When a real-estate broker asks and obtains from the owner the price of certain real estate, or the price at which the owner is willing to sell, this, without more, does not establish the relation of principal and agent between the owner and broker; it does not establish a contract of employment. If the rule were otherwise, no one would be safe in stating the price of his own property in the hearing of a broker.

3. This action was tried by the court without a jury. If the finding had been in favor of plaintiff, we might not have felt at liberty to disturb it, since, from the facts and circumstances shown by plaintiff's evidence, a contract of employment might possibly have been inferred. But the trial court was the judge of the credibility of the witnesses, whom he saw and heard, and of the weight of the evidence which they gave. The evidence being conflicting, it is not the province of this court to reverse findings of fact. The testimony of the defendant was plain and positive to the effect that he did not employ the plaintiff as his agent in any capacity. Defendant...