Geier v. Howells

• Decision Date: 07 February 1910
• Citation: 47 Colo. 345,107 P. 255
• Parties: GEIER v. HOWELLS.
• Court: Colorado Supreme Court

107 P. 255

47 Colo. 345

GEIER v. HOWELLS.

Supreme Court of Colorado

February 7, 1910

Appeal from County Court, City and County of Denver; Chas. McCall Judge.

Action by Roy C. Howells against Harry Geier. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

John H Reddin, for appellant.

H. W Spangler and D. B. Kinkaid, for appellee.

GABBERT, J.

This is an appeal from a judgment rendered against the appellant Geier, in an action brought against him by the appellee to recover commissions for the sale of a house in the city of Denver belonging to the appellant. The sole question necessary to determine is whether or not the testimony is sufficient to support the judgment rendered.

Plaintiff is a real estate broker engaged in that business in the city of Denver. According to his testimony, he took a Mrs. Oakes to a cottage at No. 530 High street belonging to the defendant, which he had listed with him for sale, for the purpose of showing her the property. She was not favorably impressed with the place, and asked him if he had other houses in that neighborhood for sale. He said, 'Yes,' there was a house across the street, and she wanted to know if he had that for sale, to which he replied he was not certain that he had, but when he returned to his office he would ascertain the price, if it had been listed with him for sale. They then went across the street. Mrs. Oakes was accompanied by her father, and they waited on the front porch while plaintiff went to the rear, entered through the basement, and, on reaching the front door, opened it and admitted them. A short time after Mr. Geier, who was in the neighborhood and had noticed the front door open, entered the house, when, according to the testimony of plaintiff, the following conversation took place: 'I said to Mr. Geier: 'Is this your house, too?' He says: 'Yes; I am building it.' I says: 'Well, I am glad to hear that.' I says: 'This is the kind of house about these people want. Is it for sale?' He says: 'Yes.' I says: 'What do you want for it?' He says: 'Five thousand dollars.' I says: 'I will take you in and introduce you to these people.' He says: 'All right.' I introduced him. I believe Mr. Geier took Mrs. Oakes and pointed out the different advantages, and I took her father, and went along with them. They said they liked it very much, and would like to have Mr. Oakes, Mrs. Oakes' husband, see it Sunday. I told them, 'All right'; I would get my car to take them up Sunday. Mr. Geier says: 'No use your coming up. I can just as well show the house and save you that trouble,' I says: 'If you are going to be here, no use of my coming.' I called him up a few days after that, and said: 'How did you get along?' He says: 'They liked the house very well.' I says: 'What can I do?' He says: 'You just stay away from them.' I says: 'All right. You think you can handle it, go ahead.' The thing went along. I called him up and asked if he had closed the sale, that another party wanted to look at the house. He says: 'I think I can close it, but I cannot pay you full commission out of it at that price.' But he says: 'I will come in and see you.'' On cross-examination he said that the cottage at 530 High street did not suit Mrs. Oakes, and, as there was a new house going up across the street, he suggested that they go over and look at it. Continuing, he says: 'I did not know whether I had it listed at that time or not, and did not know who owned the house. I said: 'We will go and look at this new house, and I will go back to my office and see whether I have it.' We went across the street to the new house and Mr. Geier followed us over. He stopped at the front door and talked with me. I asked him the price, and he said $5,000. I told him I had some parties to look for a house of that kind, and that it would suit them if it was for sale. I said: 'I will take you in and introduce you to these parties.' He says: 'All right. Go ahead and sell.'' Plaintiff conceded that defendant had not listed the property with him, and had never said anything to him about selling it, except as above stated.

Mrs. Oakes testified, in substance, that, when they came out of the cottage at No. 530 High street, she noticed a new house across the street, and asked him if he had that for sale, and he said he did not know. He had one listed just recently, but did not know whether that was the house or not, but that they would go over and look at it. She and her father stayed on the front porch while plaintiff went around the house and unlocked the door, and soon after they entered the defendant came to the front door, and plaintiff had a conversation with him there. Later he called defendant back and introduced him, and he told them the price of the house was $5,000. She states that she did not hear any of the conversation between plaintiff and the defendant. She also says that from the time she first looked at the house all negotiations were continued directly with the defendant.

The defendant testified that he was in the near vicinity when he noticed the parties entering the house; that he went over and met them in the hallway; that Mr. Howells simply asked him who was building the house; that he said he was; that Howells acted very much surprised, said it was a beautiful place, introduced him to Mrs. Oakes and her father, saying he was showing them some houses; that Mrs. Oakes asked him how much the house was worth; that he replied $5,000. He denied emphatically that he ever told Mr. Howells to go ahead and sell the place, or that he ever said anything to him at all, authorizing him to sell the property. He also denied that he had ever promised Mr. Howells to pay him any commission on account of the sale, but did tell him he did not think he was entitled to commission on the deal. He sold the property to Mrs. Oakes for $4,850.

To entitle a real estate broker to commission, a contract of employment is necessary. When a broker asks and obtains from the owner the price at which he is willing to sell certain real estate, that...