Duncan v. Borden

• Citation: 59 P. 60,13 Colo.App. 481
• Parties: DUNCAN v. BORDEN et al.
• Decision Date: 13 November 1899
• Court: Court of Appeals of Colorado

59 P. 60

13 Colo.App. 481

DUNCAN v. BORDEN et al.

Court of Appeals of Colorado

November 13, 1899

Appeal from district court, El Paso county.

Action by M.P. Borden and another against James C. Duncan. Judgment for plaintiffs, and defendant appeals. Modified and affirmed.

Gunnell & Hamlin, for appellant.

W.S Morris, for appellees.

WILSON J.

The object of this suit, instituted by appellees, was to recover brokers' commissions alleged to have been earned by them in and about the leasing of certain real estate belonging to defendant, Duncan. The lease was of a town lot for a term of five years, the consideration being the payment of a monthly rental of $100 during said term, and the erection on the lot of a building to cost $3,000, which should at the termination of the lease become the property of the lessor, Duncan. The amount claimed for commission was $450, and the verdict of the jury and judgment were in favor of plaintiffs.

The defendant raises and discusses three questions on this appeal. First, did the relation of principal and agent exist between appellant and appellees, such as would authorize the latter to claim compensation for services performed? Second was the charge made by the appellees reasonable? Third, did the court err in refusing to give certain instructions asked by the appellant or in instructing the jury on the question of ratification? The first two questions may be easily disposed of upon the ground that they were matters of fact to be submitted to, and determined by, the jury on the evidence. If they were so submitted, under proper instructions of the court as to the law, then the verdict, having been rendered upon conflicting evidence, as was the case, will not be disturbed by this court. The weight of the evidence seems to have supported the verdict as to the disputed facts. That the services for which plaintiffs claimed compensation were rendered by them, and that they were the procuring cause of the lease, was undisputed. In such case, the law favors that construction of the contract, if any, and that interpretation of the facts and acts of the parties, which will best secure to the broker or agent payment of his commissions. Finnerty v. Fritz, 5 Colo. 174.

The chief complaint of the defendant with reference to the instructions was the refusal of the court to instruct, in substance, that, when any real-estate broker asks and obtains from an owner the price at which he is willing to sell or lease the same, this, without more, does not establish the relation of principal and agent, nor will the fact that the defendant subsequently consummated a bargain with a party introduced by plaintiff create a liability. This correctly expressed the general rule of law as it has been announced by our supreme court. Castner v Richardson, 18 Colo. 496, 33 P. 163. The instructions which the court did give, however, fairly expressed this rule to the jury, and, in fact, instruction No. 4...