Dickey v. Waggoner
| Decision Date | 16 June 1941 |
| Docket Number | 14767. |
| Citation | 114 P.2d 1097,108 Colo. 197 |
| Parties | DICKEY v. WAGGONER. |
| Court | Colorado Supreme Court |
In Department.
Error to District Court, Weld County; Frederic W. Clark, Judge.
Action by B. F. Waggoner against Emma Dickey, to recover real estate broker's commission. To review a judgment on a verdict for plaintiff, defendant brings error.
Affirmed.
J Emery Chilton, of Denver, for plaintiff in error.
William R. Kelly and M. E. H. Smith, both of Greeley, for defendant in error.
The parties to this litigation are here in reverse order of their appearance in the district court, and for convenience will be herein designated as plaintiff and defendant. Plaintiff sued for a real estate broker's commission and recovered judgment for $750 in the district court. Defendant seeks a reversal on the sole ground that the evidence is insufficient to support the verdict of the jury and the judgment based thereon.
The evidence, as is usual in such cases, is conflicting. We have examined the record with care, and we have not confined our examination to the abstract and supplemental abstract but have read the transcript of the entire evidence. The record contains testimony from which the jury was warranted in finding that defendant employed plaintiff as a real estate broker to sell her farm for $22,000 and that he was to receive therefor a commission, the amount thereof not then specifically agreed upon; that pursuant to such employment he rpocured one Anderson as a prospective purchaser, who, as the testimony clearly indicates, was ready, willing, and amply able to buy the place at the price he offered, namely $20,000. The amount of this offer was not equal to the listed price, $22,000, but we think the evidence, concerning the usual vicissitudes to which such deals are subject in their progress from inception towards final consummation, was sufficient to entitle the jury to find that defendant accepted the offer of $20,000 made by the purchaser procured by the broker, and that she agreed to pay the latter a commission of $750. It appears from the evidence introduced by defendant herself that she conferred with plaintiff and her attorney concerning the matter. After this conference the attorney, who testified as a defense witness, was of the opinion that defendant had consummated the deal on the basis of the offer of $20,000, and that such was his understanding is apparent from the purport of his testimony. In the presence of defendant he inquired the name of the purchaser and testified that he understood he was to prepare the conveyance, and also in the presence of defendant called the purchaser's attorney to advise him that the abstracts would be procured and sent to him for examination. This supports the direct testimony of plaintiff and his salesman that defendant did accept the offer upon the terms submitted. The jury doubtless entertained the view that the fact that another purchaser appeared after this $20,000 offer was accepted who offered to, and did, pay $21,500 for the property was the real reason that defendant attempted to repudiate her agreement to sell for the $20,000.
None of the instructions to the jury was objected to by defendant. In these instructions, among other things, the jury was told in effect that if it believed from the evidence that defendant employed the plaintiff as a real estate broker to sell her farm and that plaintiff procured as a purchaser one Anderson who was ready, willing, and able to buy on terms that...
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...willing and able to execute such a contract.' See also Costilla Land Co. v. Robinson, 238 F.2d 105 (10th Cir.1956); Dickey v. Waggoner, 108 Colo. 197, 114 P.2d 1097; Spence v. Lawrence, 337 Mass. 355, 149 N.E.2d 379; Marschalk v. Weber, 11 N.J.Super. 16, 77 A.2d 505; 12 C.J.S. Brokers § 95.......
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COSTILLA LAND COMPANY v. Robinson
...Land Company and one-third to appellant Robinson. 1 Buckingham v. Harris, 1887, 10 Colo. 455, 15 P. 817, 818; Dickey v. Waggoner, 1941, 108 Colo. 197, 114 P.2d 1097, 1098; Gray v. Blake, 1953, 128 Colo. 381, 262 P.2d 741, 743-744; 8 Am.Jur. 1066, 1090, 1097, Brokers §§ 141, 174, 2 J. E. Ril......
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