Howe v. Werner

• Decision Date: 09 March 1896
• Citation: 7 Colo.App. 530,44 P. 511
• Parties: HOWE v. WERNER et al.
• Court: Colorado Court of Appeals

44 P. 511

7 Colo.App. 530

HOWE v. WERNER et al.

Court of Appeals of Colorado

March 9, 1896

Appeal from district court, Arapahoe county.

Action by Otto Werner and others against Crosby O. Howe to recover a commission. From a judgment for plaintiffs, defendant appeals. Affirmed.

Willis B. Herr, for appellant.

REED, P.J.

The suit was brought by appellees against appellant to recover a commission of $300, as real-estate brokers in the exchange of property of appellant in the state of Maine for the property of one Kleine, situated in North Denver. The complaint, in the ordinary form, alleges the employment; the agreed price for the services in case the transaction was consummated was to be $300; that the trade was consummated, and the money earned; and that the payment had not been made. The answer was a general denial, with the following special defense "Defendant alleges the truth to be that on, to wit, the _____ day of _____, 1892, the defendant did agree to pay to the plaintiffs the said sum of three hundred dollars ($300) if the plaintiffs succeeded in effecting an exchange of certain property situated in the state of Maine for certain real estate situated in the city of Denver, Colorado, free and clear of all liens and incumbrances; and that the plaintiffs never did succeed in making an exchange of said property on the terms and conditions authorized by the defendant,"--to which a replication was filed. Trial was had to the court, without a jury; a finding for the plaintiffs; and judgment for $335.33, from which an appeal was prosecuted to this court. There was no serious disagreement as to the facts of this case. The testimony is conclusive that appellant was to pay appellees $300 as commission in case the trade was consummated. Appellant claims that the exchange of property was not completed in accordance with the proposition by him made, upon which the payment to pay the $300 was predicated, but upon a different basis, afterwards arranged.

However this may have been, it is clear that the parties were brought together, and the trade effected, by the agency of appellees.

The law of real-estate agency is well settled by several adjudicated cases in both the supreme and this court (see Finerty v Fritz, 5 Colo. 174; Buckingham v. Harris, 10 Colo. 445, 15 P 817; Babcock v. Merritt, 1 Colo.App. 84, 27 P. 882; Anderson v. Smythe, 1 Colo.App. 253, 28 P 478); and is stated to be "that when an agent produces a purchaser acceptable to the owner, and able and willing to purchase on terms satisfactory to the owner, the agent has performed his duty," and the agent is entitled to his commission. "If the agent introduces the purchaser, or discloses his...