Fuller & Co. v. Mountain States Inv. Builders
| Decision Date | 11 December 1975 |
| Docket Number | No. 75--068,75--068 |
| Parties | FULLER & COMPANY, a Colorado Corporation, Plaintiff-Appellee, v. MOUNTAIN STATES INVESTMENT BUILDERS, a partnership, et al., Defendants-Appellants. . II |
| Court | Colorado Court of Appeals |
Banta, Banta & Eitel, Tom L. Eitel, Englewood, for plaintiff-appellee.
Clark, Martin & Pringle, Bruce D. Pringle, Denver, for defendants-appellants.
This is an appeal by Mountain States Investment Builders (Mountain States) from a judgment awarding a broker's commission to Fuller & Company (Fuller). We affirm.
Fuller had obtained an exclusive listing for 10 days on a large apartment complex constructed by Mountain States. This agreement provided that the commission was to be paid over a six-year period, in yearly installments of $20,000. The complex was sold in accordance with the terms of the listing agreement to a group of 11 buyers, one of whom was Dan Kubby, the participating agent for Fuller in the transaction. The sale to the Kubby group involved their assumption of an outstanding mortgage, the making of a substantial down payment, and the execution of an even more substantial note in the amount of $300,000 in favor of Mountain States.
At approximately the same time, Fuller and Mountain States entered into another agreement, (the commission agreement), pertaining to the payment of the commission. This agreement took the form of a letter from Mountain States to Fuller. The evidence is inconclusive as to the identity of the person or persons who prepared this second instrument.
As a consequence of litigation between the Kubby group and Mountain States concerning alleged defects in the construction of the complex, no payments have ever been made on the promissory note. The first payment on the commission was made at the time of closing, but the remainder of the commission has not been paid to Fuller by Mountain States. Fuller instituted this suit to recover the balance of the commission.
Prior to trial, Fuller moved for summary judgment on the basis that the instrument documenting the commission agreement was clear and unambiguous, and that the instruments established Fuller's entitlement to the commission as a matter of law. The motion for summary judgment was denied. Trial to the court was then held. During the course of the trial, extensive testimony was given as to the intent of the parties and the negotiations preceding the execution of the listing and commission agreements. At the conclusion of the trial, the court entered judgment in favor of Fuller.
The issue in this appeal is whether Fuller's commission is presently due under the parties' agreement, or whether it is not yet payable because of the failure of the procured purchasers of the subject property to make payments on the promissory note executed to the sellers, Mountain States, in conjunction with the sale.
On appeal, Mountain States contends that the record demonstrates that the trial court erred in that it considered only the written instruments in arriving at its decision. In this regard, Mountain States asserts that the language contained in the written instruments is ambiguous and therefore, the testimony of the parties should have been considered, and that had it been considered, a contrary result would have occurred.
Although we agree that the record does not establish with absolute certainty the basis of the trial court's judgment, we need not consider that issue since we hold that the instruments documenting the agreement of the parties were clear and unambiguous, entitling Fuller to recover its commission regardless of whether installments were paid under the promissory note.
At the outset, then, we must evaluate the documentation of the agreement between Fuller and Mountain States in order to establish which instruments, if any, embodied that agreement.
The terms of the listing agreement provided for payment of the commission in the following manner:
'$20,000.00 at time of closing and $20,000.00 each year thereafter until paid in full plus interest at the rate of 7 1/2 percent per annum on the unpaid principal balance; the total commission is $120,000.00, payable over a six (6) year period.'
The commission agreement letter stated, in pertinent part, as follows:
'It has been our agreement that we are to pay you $20,000.00 Per year with the first payment being made concurrently with the execution of this letter, and the subsequent payments being made on the first five (5) Payment dates of that $300,000.00 Note and Deed of Trust being executed by the Purchasers of our property.
'In the event that we shall be unable to obtain the mortgage from the Prudential Insurance Company of...
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