Kendrick v. Price

Decision Date07 November 1921
Docket Number10186.
Citation201 P. 884,70 Colo. 405
PartiesKENDRICK v. PRICE.
CourtColorado Supreme Court

Department 3.

Error to District Court, El. Paso County; Arthur Cornforth, Judge.

Action by W. L. Price against W. H. Kendrick. Judgment for plaintiff, and defendant brings error.

Application for supersedeas denied, and judgment affirmed.

Orr &amp Little, of Colorado Springs, for plaintiff in error.

W. D Lombard, C. B. Horn, and Eugene D. Preston, all of Colorado Springs, for defendant in error.

BURKE J.

Defendant in error brought this action against plaintiff in error to recover $3,500 commission on the sale of real estate, and a balance of $169.06 on an open account. Plaintiff in error denied generally as to the commission, admitted as to the open account, and counterclaimed for $2,240 commission on sale of real estate alleged to be due him from defendant in error on a separate transaction. Defendant in error denied as to the counterclaim. From verdict and judgment against plaintiff in error in the sum of $3,452.51, this writ is prosecuted. The cause is now before us on an application for supersedeas. The parties are hereinafter designated as in the trial court.

Twenty-seven alleged errors are assigned. Two propositions only are seriously urged in the briefs of counsel for defendant: (1) The refusal of the court to sustain defendant's motion for a nonsuit, made at the close of the taking of all testimony, and based upon the assertion that the evidence was insufficient to establish that plaintiff was the procuring cause of the sale and did establish that the purchaser was procured by the defendant himself; (2) that the verdict is unsupported by the evidence and is the result of passion, caprice, and prejudice, as shown by the alleged fact that no computation permissible under the evidence and the instructions could justify the sum awarded. Briefly stated, the sole question thus presented is, 'Is the verdict supported by the evidence?' The determination of this question has thus necessitated an examination of the entire bill of exceptions of 142 pages. This we have read with great care.

1. Plaintiff testifies to a contract between himself and defendant under the terms of which he was to receive a commission of $3,500 for finding a purchaser for defendant's 1,750 acres of land at $30 per acre, which contract he fulfilled by producing one Bell, who bought at that price. Defendant admits a contract with plaintiff for such a commission in the sum of $2,500 for producing a cash purchaser, but asserts that he, and not the plaintiff, produced the purchaser Bell.

Defendant testifies to a contract for a commission for producing a purchaser for plaintiff's 320 acres of land, said commission to be such sum over $20 per acre as the land sold for; that he did produce such a purchaser, who bought at $27 per acre, whereby the sum of $2,240 was earned. Plaintiff denies this contract, but admits an offer to sell his land to defendant for $20 per acre cash, which offer he says was never accepted, but merely met by defendant with a counter proposition of $18 per acre contingent upon defendant's sale of his 1,750 acres.

The law of this jurisdiction governing commissions on the sale of real estate is well settled, and there are no substantial conflicts in the authorities. Many of the...

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