Gray v. Blake

• Decision Date: 26 October 1953
• Docket Number: No. 17005,17005
• Citation: 128 Colo. 381,262 P.2d 741
• Parties: GRAY v. BLAKE.
• Court: Colorado Supreme Court

Page 741

262 P.2d 741

128 Colo. 381

GRAY v. BLAKE.

No. 17005.

Supreme Court of Colorado, En Banc.

Oct. 26, 1953.

Berton T. Gobble, Brush, for plaintiff in error.

George A. Epperson, Donald F. McClary, Fort Morgan, for defendant in error.

KNAUSS, Justice.

C. A. Gray, plaintiff in error, a real-estate broker, was defeated in a trial by jury in his action against James Blake, defendant in error, for a commission he claimed to have earned in securing a purchaser for certain real estate. To reverse the judgment against him, he has sued out a writ of error. We will refer to the parties by name, or as they appeared in the trial court.

James Blake and his wife were owners in joint tenancy of ranch property. He listed the property with plaintiff for sale originally in 1949 and again in 1950. In March, 1951 Gray's representative submitted to James Blake a document entitled 'Agreement to Purchase Real Estate,' which was an offer on the part of one Kincheloe to buy the Blake property for $18 per acre, Blake to reserve one-half of the oil and mineral rights connected with his ranch, all in accordance with a signed listing made by Blake, who later in writing approved the contract submitted to him and accepted Kincheloe's check in the sum of $1,000. The check never was cashed. Abstracts of title were delivered, and according to Gray's evidence the first time he or his representative knew that Mrs. Blake was a joint owner of the property was when the abstracts were examined. The wife knew that the property had been listed with plaintiff for sale, and on one or more occasions showed it to propective purchasers produced by plaintiff. She disclaimed knowledge of the price at which it was to be sold.

Mrs. Blake did not sign the contract. Within the time limited thereby, Kincheloe tendered in cash the balance of the purchase price to Blake and demanded a deed signed by both Mr. and Mrs. Blake. Mrs. Blake refused to sign the deed, giving as her reason that it was too late in the year and the price was too low. Gray then filed his action against James Blake to recover his commission.

Counsel for plaintiff argues that the trial court erred in overruling his motion for summary judgment 'based upon the pleadings, depositions and admissions on file' asserting that 'no genuine issue as to any material fact' existed, and that 'plaintiff is entitled to a judgment as a matter of law.'

Nowhere in plaintiff's brief, or in the record before us, do any depositions appear, and the only admissions are those in the pleadings. Counsel for plaintiff in error states that the depositions contained 'essentially the facts set forth in the transcript of testimony.' We do not consider this point for the obvious reason that nothing appears before us to show no genuine issue of fact existed. We repeat what has so often been said, that except where there is no genuine issue as to any material fact, a motion for summary judgment is properly overruled. Hatfield v. Barnes, 115 Colo. 30, 168 P.2d 552.

From our examination of the record it appears that a material issue of fact was presented, and the trial court did not err in denying the motion for summary judgment interposed by counsel for plaintiff.

Counsel urges as another point for reversal the giving of the following instruction, to which timely objection was made:

No. 7

'The agreement attached to the complaint and marked Exhibit 'A' is not a contract of sale such as creates an obligation on the part of the defendant to sell or the plaintiff to buy, but is merely an option giving the right to purchase within a limited time without imposing any obligation to purchase.' (Emphasis supplied.)

We pass over the patent error in the instruction where the court refers to 'plaintiff,' obviously meaning Kincheloe.

When Kincheloe made his offer to buy on terms agreeable to Blake and the latter in writing approved and accepted the contract, together with the $1,000 check, it still remained for Kincheloe to make payment of the balance of the purchase price, thereby making it a binding contract on all parties thereto. Prosser v. Schmidt, 118 Colo. 502, 197 P.2d 318.

The agreement, to which reference is made, was dated March 15, 1951, and executed by Gray as agent, approved in writing by Kincheloe as purchaser, and on March 17, 1951 was approved by James Blake as 'seller.' It recited, 'upon approval hereof by the seller, this agreement shall become a contract between the seller and purchaser and shall inure to the benefit of the heirs, successors and assigns of said parties.' In the agreement, payment of $1,000 by Kincheloe 'as part payment' for the lands in question, was acknowledged, and it is further recited, 'which property purchaser agrees to buy.' Balance of the purchase price was to be paid within thirty days on 'acceptance of merchantable title' and it is further provided that 'upon payment or tender as above provided * * * the seller shall execute and deliver a good and sufficient warranty deed...