Williams v. Bishop

• Decision Date: 09 May 1898
• Citation: 11 Colo.App. 378,53 P. 239
• Parties: WILLIAMS v. BISHOP et al.
• Court: Colorado Court of Appeals

53 P. 239

11 Colo.App. 378

WILLIAMS v. BISHOP et al.

Court of Appeals of Colorado

May 9, 1898

Appeal from district court, Las Animas county.

Action by F.A.A. Williams against George H. Bishop and others. Judgment for defendants, and plaintiff appeals. Reversed.

W.B Morgan, for appellant.

Abbott & Abbott, for appellees.

THOMSON, P.J.

Suit by real-estate agent for commission. Judgment against him, from which he appealed. The principal facts are not in dispute. There was some conflict in the evidence, but it related to immaterial matters. The facts upon which both sides agree are determinative of the case, and the others will not be noticed. The plaintiff, Williams, was a real-estate agent in the city of Trinidad. The defendants George H. Bishop and M.B. Munroe were the owners of certain real estate in that city, consisting of a lot with a house upon it. The defendant C.M. Bishop had charge of the interest in the property of George H. Bishop, who was his brother. The defendant W.F Munroe was the husband of M.B. Munroe, and represented her interest. Her interest had been conveyed to E.L. Blake, and stood in his name. The conveyance had been made as security for a debt, and was, therefore, a mortgage. C.H. Blake was the brother of E.L. Blake, and in certain transactions concerning the property, which will be noticed hereafter acted for him. He also had authority from C.M. Bishop and W.F. Munroe to sell the property. About September 1, 1895 C.M. Bishop placed the property with the plaintiff for sale at $2,300, exclusive of commission. Afterwards, W.F. Munroe, on learning what Bishop had done, declined to accede to it, saying that the interest he represented must be sold at a higher rate. It was then agreed between these two men and the plaintiff that the latter should sell the property for $2,500, and deduct his commission from the purchase price. At this time the plaintiff informed them that he would show the property to a lady who was desirous of purchasing real estate, and with whom he was in communication. The name of the lady was Mrs. Waldron. She lived out of the city, and, as will be seen, she finally became the purchaser of the property. Shortly afterwards, in pursuance of prearrangement with the plaintiff, she came to his office, stating that she had closed her own matters out, and was ready to buy. He took her to this property, and showed her through the house. He priced it to her at $2,500, in accordance with his agreement with the owners' representatives. She expressed herself as much pleased with the house, and took a few days to consider the proposition. A short time afterwards, in company with C.H. Blake, she was looking at various properties in the city. While looking around, the two happened to pass this particular property, and she called Blake's attention to it, saying that the plaintiff had showed it to her, and had offered it to her for $2,500, and that she thought it was a very pretty place for a residence. Blake replied that he thought he could sell it to her for less money. He then took her to the owners' representatives, and a sale of the property to her was effected for $2,300. The action is for a commission on that sum, and whatever liability for the commission there may be is against George H. Bishop and M.B. Munroe

In Finnerty v. Fritz, 5 Colo. 174, Beck, J., said: "The general principles of law applicable to real-estate brokers appear to be well settled, and rules defining their duties have been laid down and sanctioned by a long course of judicial decisions, but difficult questions often arise whether or not a given state of facts bring the agent within a rule which imposes a forfeiture of commissions for misconduct. On such questions some contrariety of opinion exists. The weight of authority favors a stringent application of these rules to all cases falling clearly within their reasons; but as to all other cases, whenever it is made to appear that the agent is the procuring cause of the sale, the law leans to that construction which will best secure the payment of his commissions, rather than the contrary." What the learned judge meant by his reference to a forfeiture of commissions for misconduct is indicated in a subsequent portion of his opinion, but there is nothing whatever in this case by which it might be included in the class of cases he had in mind. According to the general rule which he laid down as governing all other cases, if the plaintiff was the procuring cause of the sale to Mrs. Waldron, he is entitled to the commission. That he was, does not seem to me to admit of a doubt. He took her to the property, and showed it to her, at the same time giving her the price. She made such examination of the house as she saw fit, and the result was that she was impressed favorably. She so expressed herself to him, and took a little time to revolve the proposition in her mind. Shortly afterwards, Mr. Blake was taking her around the city to look at other properties. He did not show her this property, but, on passing it, she called his attention to it, and indicated her prepossession in its favor, informing him that it had been shown to her by the plaintiff. Apparently Mr. Blake did not have this property in mind at all, and, so far as the evidence discloses, Mrs. Waldron would never have heard of it except for the plaintiff. As soon as Blake learned that she had examined this property, and that she thought it desirable, he took her to the owners or their representatives, who sold it to her for a less price than that to which they had limited the plaintiff. Upon the face of the evidence, except for the plaintiff the sale would not have been made. He was, therefore, its procuring cause.

But it is argued for the defendant that, to...