Weitbrec v. Morris

• Decision Date: 02 January 1917
• Docket Number: 8346.
• Parties: WEITBREC v. MORRIS.
• Court: Colorado Supreme Court

163 P. 1119

62 Colo. 345

WEITBREC v. MORRIS.

No. 8346.

Supreme Court of Colorado, En Banc.

January 2, 1917

Rehearing Denied April 2, 1917.

Error to District Court, Pueblo County; C. S. Essex, Judge.

Action by Henry O. Morris against R. F. Weitbrec. Judgment for the plaintiff, and defendant brings error. Reversed and remanded with directions to dismiss the complaint.

Garrigues J., dissenting, and Hill, J., dissenting in part.

M. G. Saunders and E. F. Chambers, both of Pueblo for plaintiff in error.

John H. Voorhees, of Pueblo, and Edward C. Stimson, and Lawrence Lewis, both of Denver, for defendant in error.

TELLER J.

The defendant in error recovered a judgment against plaintiff in error for $45,000, as a broker's commission on a sale of real estate.

The complaint, in what is designated as a first cause of action, alleges that the defendant, prior to the 3d day of April, 1909, appointed the plaintiff his agent 'to find a purchaser and to sell and dispose of' the 3 R ranch owned by the defendant; that, on said 3d day of April, the defendant entered into a written contract as follows:

'Pueblo, Colo., April 3, 1909.

'Henry O. Morris, Pueblo, Colo.--Dear Sir: I am in receipt of your letter of March 31st.

'I undertake not to withdraw the agency for the sale of the property (the 3 R Ranch) from you without giving you at least thirty days' notice.

'The terms upon which the property is to be sold are:

'1. I am to receive the amount of $80,000 as stated by you, without any commission or other deductions.

'2. The terms are to be at least $25,000 cash on delivery of deed, deferred payments to be evidenced by notes of substantially even amounts, running not to exceed two, three, and four years, with interest at 6% per annum, payable semiannually, said notes to be secured by first mortgage trust deed on the property.

'3. As you are to receive your compensation from the purchaser or purchasers by means of an increased price over the price I am to receive, you are to so conduct all negotiations for sale and transfer of the property as to fully protect me from any and all claims, on the part of said purchaser or purchasers, and agents and other persons who may be interested, or claim to be interested in the sale; and such matters and their sufficiency shall be subject to my approval.

'If this is in accordance with your understanding of our arrangement, please signify the same by signing the statement below.

'Yours very truly,

R. F. Weitbrec.

'Henry O. Morris.

'The above is a correct statement of our understanding.

Henry O. Morris.'

It is further alleged that by a subsequent writing the term of said agency was limited to expire at midnight on August 19, 1909, and that, on the 18th of August, 1909, the plaintiff 'found a purchaser for said ranch, the same being and constituting a syndicate composed of S. B. Rohrer, of Topeka, Kan., J. E. Gaugher, of Rocky Ford, Colo., W. F. McCafferty, of Pueblo, Colo., and Hume Lewis, of Pueblo, Colo., and at said time the said purchasers were ready, able, and willing to purchase said ranch upon the terms as fixed by the said contract of agency, and at the price at $125,000 (the payment of $80,000 of said purchase price to be made upon the terms of said contract of agency); that the fact of the procuring of a purchaser ready, able, and willing to buy said 3 R ranch, together with the fact that the purchaser was a syndicate, represented by Hume Lewis, of Pueblo, Colo., was communicated to said Weitbrec on the 18th day of August, 1909'; and that said defendant, on the 28th of August, 1909, 'refused to carry out said contract of agency or to comply with the terms thereof,' and has ever since so refused, etc., by reason whereof, it is alleged:

'The plaintiff has been deprived of the part of the purchase price coming to him over and above the $80,000 to be paid to the said Weitbrec, to his damage in the sum of $45,000.'-

The complaint contained two other causes of action, but as they were eliminated by the court without objection by the plaintiff, they need not be considered.

The defendant attacked the complaint by motion to separate, which was overruled, and by motion to strike a considerable portion of the several causes of action. Although the motion was, as to many allegations, clearly well taken, it was overruled. The defendant then filed a general demurrer to the first cause of action, as well as special demurrers to the others, all of which were overruled. The defendant answered, admitting the agency, denying that a sale had been made, or a purchaser found, and alleging that the sale agreement with Lewis was not made in good faith, but with the intent to extend the term of the agency.

The trial court, in overruling a motion, made by defendant at the beginning of the trial, to exclude all evidence, on the ground that no cause of action was stated in the complaint, said:

'The court is of the opinion that if there is any cause of action here at all, it is a cause of action for a straight broker's commission, and that all matters, except what goes to establish the affirmative and negative of the duties of a real estate broker under his employment to find within the time limited a purchaser or purchasers ready, willing, and able to buy upon prescribed terms, are outside of the issues of this case; and the court believes that the evidence should be so restricted.'

As thus limited to the first cause of action, the complaint, if any cause of action could be spelled out from it, was for damages for breach of contract; and its language, especially the prayer for judgment, shows that it was so intended. And that is the only action which could be brought on the facts alleged. Gregg v. Loomis, 22 Neb. 174, 34 N.W. 355.

The plaintiff having pleaded an employment, not merely to find a purchaser, but 'to sell and dispose of' the ranch, and having confirmed this allegation by setting out the agency contract of April 3d, which created an agency to sell, a cause of action was not pleaded by alleging merely the finding of a purchaser ready, willing, and able to purchase. Nothing less than an allegation of an actual sale would make the complaint sufficient. The court erred, therefore, in overruling the general demurrer to the first cause of action.

The court erred, also, in not granting a new trial, for the reason that the evidence showed neither a sale, nor the finding of a purchaser ready, willing, and able to buy, which was necessary on the court's theory of the case. The case was tried upon the theory, suggested by the court, that the plaintiff's cause of action was for a commission for finding a purchaser.

Defendant in error relies upon a contract between himself, claiming to act as agent for Weitbrec, and Hume Lewis, to prove that he produced a purchaser, but an examination of said contract discloses that it purported to be an agreement to sell to Lewis with no reference to a syndicate.

Both the telegram and the letter of Morris to Weitbrec, informing him of this contract, stated that a sale had been made to Lewis representing a syndicate. The names of the persons constituting such syndicate were not, however, stated, and we have presented to us, therefore, a case in which a claim for a commission is made for producing a buyer without the vendor's having been advised who the buyer was. In Gerding v. Haskin, 141 N.Y. 514, 36 N.E. 601, it was held that the principal is entitled to know the name of the buyer, and, so long as there is uncertainty as to that, the broker is not entitled to a commission. In that case, the buyer was a syndicate, but its members were not definitely named to the vendor, and the court held that the vendor, not knowing the purchasers' names, was not liable for a commission.

But the objection to the judgment in this case need not be put on that ground alone. The evidence shows that only one of the persons named in the complaint as members of the purchasing syndicate, i. e., McCafferty, had signed an agreement to become such a member at the time the notice was given to Weitbrec of the sale; that is, on August 18th; nor was it shown that there was at that date a binding agreement of any king for the purchase. Gaugher, named in the complaint as a member, never signed anything, nor paid anything; Morris simply said that Gaugher agreed to go into the syndicate. Lewis signed nothing; and Rohrer, who, counsel for defendant in error would have the court believe agreed to make the purchase alone, never, prior to August 20th, agreed to buy anything or to become a member of the syndicate. The nearest he came to it was in his telegram of August 5th (Exhibit J) in which he says:

'On return will inspect, and if everything is satisfactory, will take 3/5 or all as per our understanding.'

This was no agreement to purchase, but a promise to purchase if on examination, things were satisfactory. On August 20th or 21st, he signed a subscription agreement to contribute three-fifths of the $50,000, proposed to be raised to carry out the deal. This syndicate agreement, signed after midnight of the 19th of August, though dated back to the 18th, was not evidence of an agreement within the time limited for the sale, even though it were otherwise unobjectionable. Nor is there any evidence that the sum of $5,000, recited in the Lewis-Morris contract as paid, was paid at all, if that is important. McCafferty put up his check for $1,000, but it is not shown that the check was good. A draft for $3,000 was drawn on Rohrer on the 18th of August, for which he later substituted his check for said sum, but the evidence does not show upon what bank it was drawn, and, naturally, there is no evidence as to the value of the check. Lewis drew a draft upon an...