Horton-Cavey Realty Co. v. Spencer

• Decision Date: 13 November 1975
• Docket Number: No. 74--563,HORTON-CAVEY,74--563
• Citation: 37 Colo.App. 96,544 P.2d 998
• Parties: REALTY COMPANY, Plaintiff-Appellant, v. William T. SPENCER, Defendant-Appellee. . III
• Court: Colorado Court of Appeals

Page 998

544 P.2d 998

37 Colo.App. 96

HORTON-CAVEY REALTY COMPANY, Plaintiff-Appellant, v. William T. SPENCER, Defendant-Appellee.

No. 74--563.

Colorado Court of Appeals, Div. III.

Nov. 13, 1975.

Rehearing Denied Nov. 28, 1975.

Certiorari Denied Jan. 19, 1976.

West & Weaver, P.C., Paul G. West, Denver, for plaintiff-appellant.

Tinsley, Frantz, Fleming & Davidson, P.C., William S. Fleming, Lakewood, for defendant-appellee.

PIERCE, Judge.

Plaintiff, Horton-Cavey Realty Company (Horton-Cavey), appeals from a judgment denying it a broker's commission on the sale of certain real estate. We affirm.

Horton-Cavey and the defendant, William Spencer, entered into an exclusive listing agreement pertaining to real estate owned by Spencer. This agreement set forth detailed provisions pertaining to the sale of property, and further provided that Spencer, as owner, would pay to Horton-Cavey a commission under the following circumstances:

'(1) in case of any sale or exchange of same within said listing period by the undersigned owner, the said broker, or by any person, or (2) upon the said broker finding a purchaser who is ready, willing and able to complete the purchase as proposed by the owner, or (3) in case of any such sale or exchange of the said property within the 180 days subsequent to the expiration of this agreement to any party with whom the said broker negotiated and whose name was disclosed to the owner by the broker during the listing period.'

At some time after the listing agreement had been signed, Mr. Bowman, an agent of Horton-Cavey who was attempting to effect a sale, was advised by Mrs. Spencer that the Spencers had been contacted by a Mr. Robinson prior to execution of the listing agreement, and she suggested that Bowman contact him. Bowman did so. In the ensuing weeks several written offers were submitted to Spencer by Bowman from Robinson, but a satisfactory agreement was not reached and no sale was consummated with Robinson, nor with any other prospective purchaser within the initial listing period.

Within the 180-day period following the expiration of the listing agreement, Spencer entered into a contract with Robinson for the purchase and sale of the subject property at a price which was less than that provided in the listing agreement but on terms more favorable than any of Robinson's previous offers submitted to the Spencers through Bowman. Horton-Cavey then made demand for a commission, and upon being refused, instigated this suit.

The trial court concluded that there was an ambiguity in the portion of the 180-day clause which states 'any party with whom the said broker negotiated and whose name was disclosed to the owner by the broker during the listing period.' The court resolved that ambiguity by construing it against Horton-Cavey, the party who had supplied the listing agreement, and further found that Horton-Cavey's efforts through Bowman had not been the procuring cause of the sale. Although we disagree with this reasoning, we find the result to be correct and affirm the judgment. See Metropolitan Indust. Bank v. Great Western Products Corp., 158 Colo. 198, 405 P.2d 944; Klipfel v. Neill, 30 Colo.App. 428, 494 P.2d 115.

I.

Horton-Cavey's right to recover a commission is dependent on the terms of the listing agreement. Scott v. Huntzinger, 148 Colo. 225, 365 [37 Colo.App. 98] P.2d 692. In regard to the 180-day period, the agreement does not condition the payment of the commission on the broker having been the procuring cause of the sale; hence, plaintiff need not show that it was the procuring cause in order to recover a commission here. See Delbon v. Brazil, 134 Cal.App.2d 461, 285 P.2d 710; Galbraith v. Johnston, 92 Ariz. 77, 373 P.2d 587. Consequently, the trial court's finding that Horton-Cavey was not the procuring cause of the sale is irrelevant to a resolution of the claim.

II.

We find no ambiguity in the listing agreement. It provides that the broker will be paid a commission in the event that the property be sold within the 180-day period following the expiration of the listing term to any party with whom the broker 'negotiated' And whose name was 'disclosed to the owner By the broker during the listing period.'

Words used in a contract should be generally accorded their plain and accepted meaning, Hammond v. Caton, 121 Colo. 7, 212 P.2d 845, subject to interpretation from the context and circumstances of the transaction. Kingsbury v. Riverton-Wyoming Refining Co., 68 Colo. 581, 192 P. 503. The key word in the 180-day clause is 'disclose.' In the context of the subject listing agreement and under the surrounding circumstances, we do not find the use of this word to be ambiguous. The plain and accepted meaning of '...