Merritt v. Hummer

• Decision Date: 13 February 1912
• Citation: 122 P. 816,21 Colo.App. 568
• Parties: MERRITT v. HUMMER.
• Court: Colorado Court of Appeals

122 P. 816

21 Colo.App. 568

MERRITT v. HUMMER.

Court of Appeals of Colorado

February 13, 1912

Rehearing Denied April 8, 1912

Appeal from District Court, City and County of Denver; Harry C Riddle, Judge.

Action by George A. Hummer against Elmer W. Merritt. Judgment for plaintiff, and defendant appeals. Affirmed.

Doud & Fowler and Golding Fairfield, all of Denver, for appellant.

Thomas Bryant & Malburn, of Denver, for appellee.

CUNNINGHAM J.

The facts, so far as we deem them important to a proper understanding of the controversy, are substantially as follows: The defendant, a real estate agent in the city of Denver, arranged with the plaintiff, then residing in Victor but who owned certain real estate within the city of Denver, to sell said real estate. After some correspondence, and a personal interview on the subject, defendant wrote the following letter to plaintiff: "Dear Sir: We have a customer at last to whom you may possibly sell your property. The price you gave us was $15,000 net. Is this absolutely the lowest and best you can do? How much cash will you require down?" Plaintiff answered: "I have yours of the 9th. I note what you say about my property. *** The price will be strictly as I gave it to you when in Denver, $15,000 net to me. *** If I sell at all, I shall want the money for other investments." Later the defendant called plaintiff by telephone and said to him, in substance, "I have sold your property for $15,000." Plaintiff at once demurred to the sale, and a personal interview followed, in which some contention occurred between the parties, the burden of which was that plaintiff felt that the property was worth more money, and that he preferred to make a settlement with the defendant, whereby defendant would receive a commission for his trouble, and the plaintiff might withdraw the property from the market, or at least from the hands of defendant. This proposition defendant strenuously objected to, contending that he had a right to sell the property on the terms he had sold it, and produced a contract which reads as follows: "Denver, Colo., January 8, 1906. Received of Peter Scola the sum of one thousand dollars, being part purchase price on the following described property in Arapahoe county, Colorado: Lots numbered twenty-three (23) and twenty-four (24) in block numbered one hundred and ninety-seven (197) in East Denver. Full consideration to be fifteen thousand five hundred dollars, terms as follows: One thousand dollars as above receipted for, and the balance of fourteen thousand five hundred dollars to be paid in cash on or before February 8, 1906. Deferred payments to be secured by note and deed of trust on said property. Good and sufficient warranty deed and abstract of title to be furnished. If said payment of $14,500.00 is not made or tendered on or before said date, then this receipt to be void and of no effect, and both parties released from all obligations herein; and, in that event, the said $1,000 paid on this date is to be forfeited as liquidated damages. In case title is found defective and cannot be corrected within a reasonable time, then this deposit of $1,000 is to be returned, and this receipt shall be null and void. Property to be freed and cleared of all liens and assessments to date of transfer. George A. Hummer, by E.W. Merritt, Agent."

Defendant tendered or offered plaintiff the $1,000 which the above agreement states had been deposited with him (defendant); but plaintiff declined to receive same, at that time, but said he desired to take the advice of an attorney on the question of his liability. This he promptly did. The attorney consulted conferred with defendant, who, to show his authority or agency, exhibited the letter from Hummer, together with a listing card containing a description of the property, and authorizing Merritt to act as agent for the sale of the same, and providing for 10 days' notice from Hummer to Merritt if the former desired to withdraw the property from the market. This card purported to be, and Merritt represented to plaintiff's attorney that it had been, signed by plaintiff. Defendant declined, in his confidence with the attorney, to settle on any basis other than the consummation of the sale on the conditions named in the agreement above quoted, representing to the attorney, as he had done to plaintiff, that he had sold the property to an eastern man, and received $1,000 on account; that the purchaser was so favorably impressed with the particular property that he would accept no other, nor consent to plaintiff's release. Defendant does not appear to have exhibited to the attorney the Scola agreement of January 8th, and whether the attorney ever saw it does not appear. Being convinced by defendant's representations that Hummer was bound, the attorney so advised him. As a result of his attorney's advice, and of further conference with Merritt, Hummer entered into the following agreement with Merritt, which, for the sake of brevity, we shall hereafter refer to as "Exhibit F": "Denver, Colo., January 12, 1906. Received of E.W. Merritt the sum of five hundred dollars, being part purchase price on the following described property in Arapahoe county, Colorado: Lots twenty-three (23) and twenty-four (24) in block numbered one hundred and ninety-seven (197) in East Denver. Full consideration to be fifteen thousand and three hundred dollars, terms as follows: Five hundred dollars as above receipted for and the balance of fourteen thousand and eight hundred dollars ($14,800.00) to be paid in cash on or before thirty days after date hereof, January 12, 1906, or as soon thereafter as I can clear said property from all liens, loans and regular and special taxes. Deferred payments to be secured by note and deed of trust on said property. Good and sufficient warranty deed and abstract of title to be furnished, showing everything clear. If said payment of $14,800.00 is not made or tendered on or before said date, or thereafter when title is clear, then this receipt to be void and of no effect and both parties released from all obligations herein; and, in that event, the said $500.00 paid on this date is to be forfeited as liquidated damages. In case title is found defective and cannot be corrected within a reasonable time, then this deposit of $500 is to be returned, and this receipt shall be null and void. I agree that the consideration in the deed may be any amount that the purchaser may desire and that I will deed to whom he may direct. [ Signed] George A. Hummer. [ Signed] E.W. Merritt. Witness: [Signed] E.W. Merritt. [ Signed] Robt. B. Rockwell." Four days later, defendant sold the property to one Gallup for $18,000, paying plaintiff $15,300, less the $500 which he had paid him at the time of the execution of Exhibit F. Early in February, learning the amount which defendant had received for the property, plaintiff instituted this action to recover the difference between what defendant had received for the property, and what he had accounted to the plaintiff for, viz., $2,700, with interest.

The contention of appellant is that the case must be reversed: (1) Because the original agreement evidenced by the letters above quoted, entitled defendant to whatever sum he might receive for the property over and above $15,000, and that under an agreement of this character the defendant might lawfully become the purchaser of the property. (2) That if the defendant might not become the lawful purchaser of the property under the original contract, he had a clear right to purchase the same under the conditions of Exhibit F. (3) That even if plaintiff was induced to enter into the agreement known as Exhibit F by false and fraudulent representations made to him at the time by defendant (as plaintiff contends he was) under the pleadings, the plaintiff may not avoid said contract on the ground of fraud. The position of appellant with reference to Exhibit F is this: He (appellant) pleaded that said exhibit in his answer, which was met, not by a plea of confession and avoidance on the ground of fraud, but by a bare general denial. The evidence shows positively that Exhibit F was entered into; hence defendant asserts that plaintiff is in no position to urge any defense whatever as against its binding force. (4) Defendant further contends that the complaint nowhere states that the defendant sold the property for $18,000. The allegation on this point reads as follows: "On or about the 5th day of February, A.D.1906, he for the first time learned that the actual consideration paid by the said Gallup to the said defendant Merritt for the said premises hereinabove described was the sum of $18,000 in cash, which the defendant well knew, but which he willfully and fraudulently concealed from this plaintiff, and did willfully, falsely, and fraudulently deceive the plaintiff by representing as aforesaid the maximum price of said premises to be the said sum of $15,500." This, defendant says, tenders no material issue; that the complaint merely states what the plaintiff learned, and when he learned it, without alleging the facts. (5) Defendant further contends that the case should be reversed because the evidence does not support the verdict. The verdict is for $2,861.31. The defendant says that it should have been for $3,076.20 or nothing. In other words, his contention is that since the difference between the amount for which the property actually sold and the amount which the defendant paid over to the plaintiff was $2,700, and the interest thereon being $376.20, the verdict "is not in harmony with the instructions, and is not supported by the evidence, and is in violation of the instructions." In addition to the alleged imperfections of...