Mack v. McKanna, 83CA0430
| Decision Date | 10 May 1984 |
| Docket Number | No. 83CA0430,83CA0430 |
| Citation | 687 P.2d 1326 |
| Parties | Lawrence F. MACK, individually and d/b/a Larry Mack Realty, Plaintiff-Appellant, v. Lowell M. McKANNA, Trustee, Elm Distributors, Inc., Profit Sharing Trust, Defendant-Appellee. . II |
| Court | Colorado Court of Appeals |
Johnson, Makris & Hunsaker, P.C., Nicholas Makris, William J. Hunsaker, Denver, for plaintiff-appellant.
Hall & Kinney, Stevens P. Kinney, II, Denver, for defendant-appellee.
Plaintiff, Lawrence F. Mack (broker), individually and d/b/a Larry Mack Realty, brought suit, pursuant to § 12-61-201, C.R.S., to recover a real estate broker's commission of $250,000, plus interest. The trial court ruled that there was no express contract between the broker and defendant because there had been no meeting of the minds on the material issue of whether the broker would be entitled to the commission if he produced a willing buyer but the defendant sold the property to another buyer. However, the trial court also concluded that there was a contract implied in law and on a quantum meruit theory awarded the broker $50,000 plus interest pursuant to § 5-12-101, C.R.S. (1983 Cum.Supp.).
The broker appeals, contending the trial court erred in not awarding $250,000, plus interest, on either a theory of express or implied contract, and defendant contends the trial court erred in permitting recovery on the basis of quantum meruit, and in calculating the amount due. We reverse and remand with directions for the trial court to enter judgment for the broker for $250,000, plus interest, on the basis of an express contract.
Lawrence F. Mack, doing business as Larry Mack Realty, is a licensed real estate broker in the state of Colorado. Defendant Lowell F. McKanna (trustee), was the trustee of Elm Distributors, Inc., Profit Sharing Trust (seller).
In September 1981, the broker met with the trustee's father, and informed him that he might have a buyer for some property owned by the seller. The trial court found that the father (agent) was acting as an agent for the trustee in connection with his dealings with the broker concerning this property, and that the trustee had full authority to sign a contract for the sale of the property owned by the seller, to accept offers to purchase, and to sell the property.
The broker told the agent that he thought he could sell the property for $6,250,000, and wanted to show it to Richard Rossmiller of the Heritage Financial Corporation (Heritage). The agent gave his approval. Rossmiller told the broker that he did not want to look at the property until a listing contract had been signed between the broker and the seller in order to ensure that his company's offer would not be used to entice a higher bid from another potential buyer.
Accordingly, the agent prepared a one party listing which provided:
"Dear Mr. Mack:
We agree to one party listing--namely.
Mr. Richard Rossmiller
Heritage Financial Corporation of Denver
You advised that you have quoted $6,250,000.00 for the sale of our building and land--1621 18th Street. $6,000,000.00 Net to ELM Distributors, Inc. Profit Sharing Trust with a commission of $250,000.00 to your firm."
The document was signed by both the broker and the trustee.
Heritage offered to buy the property for the $6,250,000 listing price. The agent then advised Equity Association, another potential buyer which had previously offered $5 million for the property, of this bid. Equity thereupon increased its offer to $6,100,000, and the trustee accepted this offer. No commission being involved in the sale, the trust realized $100,000 more than it would have from a sale to Heritage.
The broker then filed this suit, seeking his commission on the basis of the one party listing contract. The trial court found that there was an agreement of some kind between the parties, but concluded that there was no meeting of the minds as to the conditions under which the commission was owed to the broker. It noted that the broker believed the commission was owed when he produced the specified buyer, Heritage, ready, willing, and able to purchase the property for $6,250,000, while the agent and trustee believed the commission was not owed unless the property was actually sold to Heritage. However, the court concluded that the broker had provided valuable services to the trust by enabling it to get Equity to increase its offer substantially, and it awarded the broker $50,000 plus statutory interest.
The broker first contends that the trial court erred in holding that he was not entitled to the agreed upon commission...
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