Levy v. Spencer

• Decision Date: 19 June 1893
• Citation: 33 P. 415,18 Colo. 532
• Parties: LEVY v. SPENCER.
• Court: Colorado Supreme Court

33 P. 415

18 Colo. 532

LEVY v. SPENCER.

Supreme Court of Colorado

June 19, 1893

Appeal from district court, Arapahoe county.

Action by Benjamin D. Spencer against Archibald T. Levy to recover part of the commissions received by defendant for the sale of certain real estate. From a judgment for plaintiff, defendant appeals. Reversed.

The other facts fully appear in the following statement by GODDARD, J.:

This action was instituted by the appellee in the district court of Arapahoe county to recover from the appellant a part of a commission received by him on account of a certain real-estate transaction. On the 14th day of March, 1890, the plaintiff filed an amended complaint, which, in substance, is as follows: "That both plaintiff and defendant herein are real-estate agents, residing and doing business in the city of Denver, and the state of Colorado, and were so residing and doing business in said city at the times herein mentioned. That on the ______ day of ____, A.D. 1889, at Denver, Colorado, the said defendant, as a real-estate agent as aforesaid, had in his hands for sale an undivided one-half interest in lots seven to sixteen, (7-16) inclusive, block one hundred and forty-one, (141,) East Denver, said property being located at the corner of Seventeenth and Stout streets, city of Denver, and better known as the 'Albany Hotel Property;' said undivided interest being the property of one Charles H. Nix, the said one-half interest to be sold by said defendant for two hundred and fifty thousand dollars, ($250,000.) That as commission for the sale of said one-half interest, as plaintiff is informed and believes, and so charges, was then to be paid to said defendant the sum of ten thousand dollars ($10,000.) That at the same time and place this plaintiff did, as agent as aforesaid, have for sale a certain one-half undivided interest in certain real estate lying and being in the county of Jefferson, and state of Colorado, * * * for sale for the sum of seventy-five thousand dollars, ($75,000,) and in the event of making the sale of said property this plaintiff was to receive the sum of three thousand seven hundred and fifty dollars ($3,750) as commission; said last described one-half interest being the property of one A.L Jones. That said Jones and said Nix, being desirous of trading or selling their aforesaid interests, the said plaintiff and defendant, as agents of said parties, being desirous of bringing about said sale or said trade for said property, in consideration of that fact, and for other mutual benefits and considerations, said plaintiff and said defendant did on the ______ day of ____, 1889, agree by and with each other that each of said plaintiff and defendant were to use their best endeavors to effect a trade of the said property between the said Nix and the said Jones at the prices hereinbefore stated, and that, in the event of their effecting a trade or sale between the said parties, that in considerations of that fact and other considerations herein mentioned, that they would reach pay to the other, whenever collected, one-half of the commission paid to said agents, by their respective principals. That on the ______ day of ____, A.D. 1889, plaintiff and defendant did effect a trade or sale of the properties herein mentioned between their respective principals, the said Jones and the said Nix, at the prices hereinbefore mentioned; the said Jones executing to the said Nix a trust deed upon the aforesaid Albany Hotel property of the difference between the price of his, the said Jones', property and the price of the said Nix's Albany Hotel property. That defendant has, as plaintiff is informed and believes, and so charges, collected and settled with the said Nix for the commission agreed to be paid to said defendant by said Nix, to wit, the sum of ten thousand dollars, ($10,000.00.) That plaintiff, before the institution of this suit, has demanded of said defendant one-half of the said commission paid by the said Nix to defendant, and to which this plaintiff, under his aforesaid contract, was entitled, to wit, the sum of five thousand dollars, ($5,000.00.) That the defendant has failed and refused, and still fails and refuses, to pay to this plaintiff any part of said sum of five thousand dollars, ($5,000.00.) Wherefore plaintiff demands judgment against the said defendant for the sum of five thousand dollars, ($5,000.00,) for interest, and the cost of this suit." Defendant demurred to the amended complaint, on the ground that it did not state facts sufficient to constitute a cause of action, which demurr...