Little v. Rohauer, 83CA0693
| Decision Date | 11 April 1985 |
| Docket Number | No. 83CA0693,83CA0693 |
| Citation | 707 P.2d 1015 |
| Parties | Floyd D. LITTLE and Joyce G. Little, Plaintiffs-Appellees, v. Frank G. ROHAUER and Suzanne M. Rohauer, Defendants-Appellants. . I |
| Court | Colorado Court of Appeals |
Darrell S. Elliott, P.C., Darrell S. Elliot, Denver, for plaintiffs-appellees.
Dixon & Snow, Jerre W. Dixon, Denver, for defendants-appellants.
Frank G. and Suzanne M. Rohauer (purchasers) appeal a judgment granted in favor of plaintiffs, Floyd G. and Joyce G. Little (sellers). We affirm the judgment.
With the help of a real estate salesperson from Coldwell Banker Residential Brokerage Company (Coldwell), the Rohauers, who were living outside of Colorado, found a Denver home to purchase. The home was owned by the Littles. The listing salesperson on the home was also employed by Coldwell. On June 18, 1981, the sellers and purchasers entered into a receipt and option agreement which provided for sellers to convey the home for the purchase price of $425,000 with $20,000 paid as earnest money and the remainder to be paid in cash or certified funds upon delivery of deed. The contract further provided in part:
The contract was signed and executed by purchasers and sellers and by Coldwell as agent. The closing was to take place July 20, 1981.
The record indicates that the title commitment was mailed on July 7, 1981, to Coldwell, and that the listing salesperson received it before the specified date, July 10, 1981. On July 14, 1981, the purchasers informed Coldwell that they would not perform pursuant to the contract, and stopped payment on the $20,000 earnest money check. Purchasers asserted that sellers had breached the "time of the essence" clause, and the title commitment clause since purchasers did not receive the title commitment "on or before July 10, 1981." The court, however, found that the selling salesperson was the agent of the purchasers and, thus, receipt of the commitment by Coldwell was imputed to the purchasers who were therefore in breach of the contract by not proceeding with the closing. The court awarded sellers the earnest money deposit of $20,000 as liquidated damages.
Purchasers first argue that there was no agency relationship between them and Coldwell. We disagree.
Agency may be established by the conduct of the alleged principal and agent. Rhodes v. Industrial Commission, 99 Colo. 271, 61 P.2d 1035 (1936). Ordinarily, the question of the existence of an agency relationship is for the fact finder, here, the trial court. Marron v. Helmecke, 100 Colo. 364, 67 P.2d 1034 (1937).
Here, one of Coldwell's employees--a real-estate salesperson--agreed to locate a home for purchasers, made appointments, and accompanied purchasers to see numerous homes in Denver. She had the receipt and option contract prepared for the purchasers, obtained their approval, and presented it with the escrow money check to the listing salesperson, who was also one of Coldwell's salespersons and its employee. She further received calls with respect to counteroffers by the sellers and relayed such information to the purchasers, and again brought the contract to the purchasers for their approval of changes. She also presented alternative financing plans at the behest of the purchasers to the sellers' lawyer and real-estate salesperson. She was told directly by purchasers that they did not intend to go through with the contract. Finally, it was...
To continue reading
Request your trial
-
Willard v. Javier
...it appears that the stipulated damages clause at issue is not patently out of proportion with expected loss. See Little v. Rohauer, 707 P.2d 1015, 1017 (Colo.Ct.App.1985)(noting that "the burden of proving that a liquidated damages clause constitutes a penalty is on the party so asserting, ......
-
O'BRIAN v. Langley School
...of proof on that issue. First Nat. Bank of Chicago v. Atlantic Tele-Network Co., 946 F.2d 516, 522 (7th Cir.1991); Little v. Rohauer, 707 P.2d 1015, 1017 (Colo.App.1985); St. Margaret's-McTernan School, Inc. v. Thompson, 31 Conn.App. 594, 627 A.2d 449, 451 (1993); Joyce's Submarine Sandwich......
-
Pacheco v. Scoblionko
...contract."4 See, e.g., Hubbard Business Plaza v. Lincoln Liberty Life Insurance, 649 F.Supp. 1310, 1313 (D.Nev.1986); Little v. Rohauer, 707 P.2d 1015, 1017 (Colo.App.1985); Heikkila v. Carver, 378 N.W.2d 214, 219 (S.D.1985); Vines v. Orchard Hills, Inc., 181 Conn. 501, 435 A.2d 1022, 1029 ......
-
Rohauer v. Little
...Ass'n of Realtors. QUINN, Chief Justice. We granted certiorari to review the decision of the court of appeals in Little v. Rohauer, 707 P.2d 1015 (Colo.App.1985), which held that the defendants-petitioners, Frank G. and Suzanne M. Rohauer, were liable to the plaintiffs-respondents, Floyd D.......
-
Agency by Surprise: the Disclosure Dilemma in Real Estate
...Buttler v. Colorado Intern. Pancakes, Inc., 510 P.2d 443 (Colo.App. 1973). 7. 671 P.2d 1011 (Colo.App. 1983). 8. Id. at 1012. 9. Id. 10. 707 P.2d 1015 (Colo.App. 1985). 11. Id. at 1016. 12. Id. 13. S.Ct. No. 86SC106. On April 21, 1986, the Colorado Supreme Court granted a petition of the pa......
-
Designated Brokerage: Colorado Real Estate Agency Law Evolves Again
...of another). 6. See, e.g., Shriver v. Carter, 651 P.2d 436, 439 (Colo.App. 1982). 7. Velten, 671 P.2d 1011 (Colo.App. 1983). 8. Little, 707 P.2d 1015 (Colo.App. 1985); rev'd v. Little, 736 P.2d 403 (Colo. 1987). 9. Velten, supra, note 7 at 1012 (licensee working for buyers also had become "......
-
No More Little Surprises in the Mls Chain of Subagency
...transaction are best served by a written agreement accompanied by full and early disclosure. NOTES _____________________ Footnotes: 1. 707 P.2d 1015 (Colo.App. 1985) 2. Earnest, "Agency by Surprise': The Disclosure Dilemma in Real Estate," 15 The Colorado Lawyer 1185 (July 1986). 3. 736 P.2......