Wade v. Nowels
| Decision Date | 01 February 1926 |
| Docket Number | 11156. |
| Citation | 78 Colo. 585,243 P. 542 |
| Parties | WADE v. NOWELS. |
| Court | Colorado Supreme Court |
Department 2.
Error to District Court, Prowers County; A. F. Hollenbeck, Judge.
Action by J. L. Wade against D. B. Nowels. Judgment for defendant and plaintiff brings error.
Reversed and new trial granted.
Gordon & Gordon, of Lamar, for plaintiff in error.
Granby Hillyer, of Denver, for defendant in error.
Nowels had a verdict and judgment in an action by Wade against him for a commission on sale of land, and Wade comes here on error.
The complaint alleges that on or about November 1 1920, Nowels employed Wade to find a purchaser for a large ranch in Baca county, and promised to pay him a commission of 5 per cent. of the price of the land or any part thereof when a binding contract to buy had been made with defendant by such purchaser, and that the plaintiff procured one Brooks, who entered into such a contract. The answer denied both the promise to pay a commission, and that plaintiff procured the purchaser. The issues, then, were (1) promise to pay commission or not; (2) production of a purchaser or not.
The plaintiff testified to a promise by defendant, on or about November 1, 1920, to the production of Brooks as a purchaser the following May, and a contract of sale between Brooks and defendant in June, 1921. The defendant, against objection and exception, was permitted to show written contract of option, made before October 1, 1920, between defendant of the one part and plaintiff and another of the other part, whereby plaintiff and his associate had a net price on the land now in question and other land, and that December 21, 1920, they sold that other land, 800 acres, and made a profit greater than 5 per cent. The admission of this evidence is assigned as error. It was right. Upon a denial any fact inconsistent with the fact denied is relevant to the issue, and, if material and competent, as this evidence was, must be admitted. Payne v. Williams, 160 P. 196, 62 Colo. 86; Benish v. Jones, 190 P. 538, 68 Colo. 484; Gromer v. Papke, 207 P. 862, 71 Colo. 440; Bijou Dist. v. Cateran Co., 213 P. 999, 73 Colo. 94; Schraeder v. Mitchell, 215 P. 147, 73 Colo. 320, 322; Casco Co. v. Central Co., 226 P. 868, 75 Colo. 478, 480. The evidence in question showed conduct of the plaintiff inconsistent with his claim that defendant had made the contract of November 1st, and so was properly admitted; its weight, of course, was for the jury.
It is claimed that instructions were erroneous. The court gave instruction No. 2 as follows:
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Owens v. Mountain States Telephone & Telegraph Co.
... ... Thompson v. Van Natta, (Tex. Civ. App.) 277 S.W ... 711; Bowman v. Rahmoeller, (Mo.) 331 Mo. 868, 55 ... S.W.2d 453; Wade v. Nowels, 78 Colo. 585, 243 P ... It ... follows that the judgment below must be reversed, and the ... cause remanded for a new trial ... ...
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Consolidated Oil & Gas, Inc. v. Roberts, 21568
...in the general real estate business, agreements may occur in which the broker is merely to produce a purchaser. E.g., Wade v. Nowels, 78 Colo. 585, 587, 243 P. 542 (1926); Donley v. Bailey, 48 Colo. 373, 378, 110 P. 65 (1910). We discussed the rights of a so-called 'finder' in George v. Dow......
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Cowgill v. Neet, 16846
...trial court, that finding should not be disturbed on appeal. Allen v. First Nat. Bank, 120 Colo. 275, 208 P.2d 935. In Wade v. Nowels, 78 Colo. 585, 243 P. 542, 543, it was 'There was an issue as to his [broker's] production of a purchaser, and, if he had produced one, pursuant to the contr......