Houston v. H. G. Wolff & Son Inv. Co.

• Decision Date: 18 December 1933
• Docket Number: 13048.
• Citation: 28 P.2d 255,94 Colo. 73
• Parties: HOUSTON et al. v. H. G. WOLFF & SON INV. CO.
• Court: Colorado Supreme Court

28 P.2d 255

94 Colo. 73

HOUSTON et al. v. H. G. WOLFF & SON INV. CO.

No. 13048.

Supreme Court of Colorado

December 18, 1933

In Department.

Error to District Court, City and County of Denver; Henley A Calvert, Judge.

Action by the H. G. Woff & Son Investment Company against W. D Houston and another. Judgment for plaintiff, and defendants bring error.

Affirmed.

John S. Stidger, of Denver, for plaintiffs in error.

Hindry Friedman & Brewster, of Denver, for defendant in error.

BURKE Justice.

Plaintiffs in error are hereinafter referred to as Houston and defendant in error as Wolff.

Wolff a real estate broker, sued Houston for $750 commission on a trade, and had a verdict for approximately that sum on which judgment was entered. To review that judgment, Houston prosecutes this writ. We have heretofore denied a supersedeas in this cause. On its final presentation no reply brief was filed.

The errors assigned are: (1) Certain evidence should have been excluded; (2) plaintiff's motion for nonsuit should have been sustained; (3) demurrer to the complaint should have been sustained; (4) motion for directed verdict should have been sustained; (5) two instructions refused should have been given, and two given should have been refused.

The demurrer, which was oral, came at the close of all the evidence. It was immediately followed by the motion to direct a verdict. These, and the motion for nonsuit, apparently rest on the same ground. They may best be considered under sufficiency of evidence. We thus reduce the questions for consideration to three, i. e.: (1) Admissibility of evidence; (2) sufficiency of evidence; (3) correctness of instructions. Comprehension of these requires a brief statement of facts.

Houston owned 'Sunnyside,' and listed it with Wolff for exchange at an estimated value of $15,000. No terms were specified. The exchange was clearly to be any trade acceptable to the owner. Wolff interested Olmstead, a broker, who represented Tibbetts. A proposition was thus made that Houston trade Sunnyside to Tibbetts for a house owned by the latter, plus three notes with their security, plus $6,000 in 'Continental' stock. Houston objected to the stock, and Tibbetts offered to substitute an automobile for half of it. Houston was satisfied with the pro rata substitution, but objected to the remaining stock. Wolff undertook to get cash in lieu thereof and continued his efforts. Thus far negotiations had been conducted by the brokers. Now Olmstead, with Wolff's consent, interviewed Houston and disclosed the identity of his client, Tibbetts. About two weeks thereafter Houston and Tibbetts closed a deal direct with $2,500 cash substituted for the last $3,000 in stock. Aside from this modification, the Tibbetts property passing to Houston was that included in the second proposition; i. e., the house, the notes, and the automobile. In other words, Houston, dealing direct with Tibbetts, put through the identical trade his broker had negotiated and was attempting to close, by reducing his price $500 and getting cash instead of stock.

1. Olmstead testified concerning his efforts to keep Tibbetts interested in the deal. The ojection was made that certain conversations recited were hearsay and incompetent because not in the presence of Houstion. That to which the assignment relates merely gives pending legislation as an excuse for interrupting negotiations and its adoption as a reason for their resumption. Right or wrong, the ruling was clearly without prejudice.

2. The objection to the complaint was that it failed to allege that Wolff found a 'purchaser ready, willing and able to buy upon the terms specified.' Of course, this was a trade not a sale, and no terms were 'specified.' The same point is made in the motion for a directed verdict. The latter also embodies the contention that the evidence does not establish that Wolff was the procuring cause of the final transaction, but does show that Wolff had abandoned the deal. The motion for nonsuit was based upon the single ground that 'plaintiff has failed to substantiate his cause...