Leech v. Clemons

• Decision Date: 13 November 1899
• Citation: 14 Colo.App. 45,59 P. 230
• Parties: LEECH et al. v. CLEMONS. [1]
• Court: Colorado Court of Appeals

59 P. 230

14 Colo.App. 45

LEECH et al. v. CLEMONS. ^[1]

Court of Appeals of Colorado

November 13, 1899

Appeal from district court, Boulder county.

Action by M.F. Leech and another against Joseph E. Clemons. Judgment for defendant, and plaintiffs appeal. Reversed.

Guy D Duncan and Patterson, Richardson & Hawkins, for appellants.

Riddell & Starkweather, for appellee.

THOMSON J.

The appellants sued the appellee for a commission on the sale of a mine, negotiated by them, as they alleged, as the agents of the defendant. The trial went against the plaintiffs, and they appealed to this court.

Error is assigned to the rejection of evidence and the giving of instructions. There is nothing in the printed abstract to enable us to say whether any evidence was improperly rejected or not; and, in behalf of the party by whom an abstract is prepared and filed, we never resort to the transcript. Kelly v. Doyle (Colo.App.) 54 P. 394; Johnson v. Spohr (Colo.App.) 56 P. 63.

The answer denied any employment of the plaintiffs, and averred that the defendant agreed with one Wadsworth to pay him $5,000 to find a purchaser at $60,000, and that Wadsworth took the plaintiff Canfield in as a partner; but denied that either Wadsworth or Canfield had anything to do with the sale which was effected. There was some evidence that the defendant placed the property with the plaintiff Canfield for sale at $60,000,--the latter to receive a commission of 10 per cent. out of the purchase price,--and that the plaintiff Leech was interested with Canfield in the sale and commission. There was also evidence that the plaintiffs found a purchaser through a party named Burns, that they introduced Burns to the defendant, and that the defendant agreed with him (Burns) that he should have for his services whatever sum he might obtain for the mine over $60,000. There was further evidence that Mr. Burns employed a mining expert named Coan to examine the mine; that the latter closed up the transaction between the defendant and the purchaser Burns had found, receiving as commission $5,000 from the defendant and $5,000 from the purchaser; that the defendant knew that Burns had found a purchaser; and that, before the deal was completed, Canfield saw the defendant, and notified him that he claimed his commission. It appears that the arrangement with Wadsworth, mentioned in the answer, had expired before the alleged authority to the plaintiffs was given. The defendant's testimony was that he did not place the property with any agent; that he told everybody who inquired of him in relation to the matter that his price was $60,000 and that the commission he would allow was $5,000; that the man who produced the purchaser should have the commission and that Coan fulfilled the requirement and accordingly received the money. The testimony of the defendant was strongly corroborated by other evidence and by circumstances. Nevertheless, there was evidence from which the jury might have found for the plaintiffs, and the only question is whether the case was properly submitted to them.

We do not deem it necessary to notice any of the instructions given, except those numbered 2, 3, and 5, which are as follows: "No. 2. The jury are instructed that, when several persons are employed by the owner to sell a mine, the agent through whose efforts a purchaser is introduced is alone entitled to a commission. The question for you to decide is, who produced Hanford as a purchaser? If you find that Coan alone did this, then the plaintiffs cannot recover. No. 3. The jury are instructed that the plaintiffs, in order to recover, must show that they were the persons who found the purchaser, Hanford; that they introduced him to Clemons that it was through their efforts that Hanford was found and induced to purchase the mine." "No. 5. Where the principal has placed property in the hands of different agents, he may pay the commission to one who produced the purchaser. He is relieved from liability to the others, and is not bound to inquire what part, if any, other agents had in the transaction. The owner of a mine may...