Williams v. Bishop

• Decision Date: 12 May 1902
• Citation: Williams v. Bishop, 17 Colo. App. 503, 68 P. 1063 (Colo. App. 1902)
• Parties: WILLIAMS v. BISHOP et al.
• Court: Colorado Court of Appeals

68 P. 1063

17 Colo.App. 503

WILLIAMS v. BISHOP et al.

Court of Appeals of Colorado

May 12, 1902

Appeal from district court, Las Animas county.

Action for broker's commission by F.A.A. Williams against George H. Bishop and others.From a judgment for defendants, the plaintiff appeals.Reversed.

W.B. Morgan, for appellant.

A.J Abbott and Jas. McKeough, Jr., for appellees.

THOMSON J.

This case is before us for the second time.The result of the former investigation was the reversal of a judgment against the present appellant.Williams v. Bishop, 11 Colo.App. 37853 P. 239.The last trial brought him no better fortune than the first, and it is to be ascertained whether the new evidence presented such change in the situation as to make good a judgment which before was erroneous.

Recovery was sought for services rendered in finding a purchaser for certain real estate; the plaintiff, in his complaint, placing the value of such services at $115.At the first trial, as appears from the opinion, the witnesses on both sides testified to substantially the following facts: 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 dwelling house on it.C.M. Bishop was a brother of George H. Bishop, and had charge of his interest in the property as his agent.W.F. Munroe was the husband of M.B. Munroe, and acted for her in relation to her interest.M.B. Munroe had conveyed her interest to E.L. Blake, as security for a debt she owed him.C.H. Blake was a brother of E.L. Blake, and in some of the transactions affecting the property acted for him.C.M. Bishop, as agent for George H. Bishop, and W.F. Munroe, as agent for M.B. Munroe, placed the property with the plaintiff for sale at $2,500, his commission to be deducted from the purchase price.Those men were, at the time, informed by the plaintiff that he was in correspondence with a lady who was desirous of purchasing real estate there, and to whom he would show this property.The lady was Mrs. Waldron, who lived out of the city.Shortly after the property had been placed with the plaintiff, Mrs. Waldron, by prearrangement with him, came to his office, and stated that she was ready to purchase.He took her to this property, and showed her through the house.He informed her that the price was $2,500.She expressed herself as much pleased with the property, and took a few days to consider the proposition.Shortly afterwards, in company with C.H. Blake, she was looking at different properties in the city, and, happening to pass this particular property, she called his attention to it, saying that it was a pretty place for a residence, and that the plaintiff had showed it to her and offered it to her for $2,500.Blake replied that he thought he could let her have it for less money, and took her to the owners' representatives, who sold it to her for $2,300.Before they made the sale, Blake told them what Mrs. Waldron had said in relation to the plaintiff's offer of the property to her.Upon the foregoing facts, we held the plaintiff entitled to a commission, and reversed the judgment denying it; and if this judgment was rendered upon substantially the same evidence that appeared in the former record, it cannot stand.

But it is insisted for the defendants that there was such change in testimony, and such additional evidence, as warranted the judgment.After a few words concerning an episode of the trial, we shall look into the claim.W.F. Munroe was a witness for the defendants.He had testified that the transaction between M.B. Munroe and E.L. Blake was a sale, and that the deed conveyed an absolute title.In the course of his cross-examination by plaintiff's counsel, he was asked this question: "Isn't it a fact that your efforts to testify contrary to the fact that that deed was a mortgage is for the purpose of showing that somebody else owned this property besides your wife, in order to avoid a judgment against her?"To this he answered: "I would not say that; I am a pretty good liar myself."The testimony of a witness who, while testifying, boasts that he is a liar, is entitled to no consideration, and will receive none here.

Counsel say that the testimony last given concerning the price at which the plaintiff was authorized to sell the property differs from that produced at the former trial, and that the plaintiff's statement that the price was $2,500 was squarely contradicted.The only witness for the defendants aside from W.F. Munroe, who spoke on the subject, was C.M. Bishop.The following is what he said: "I heard Williams' testimony.I never told him he could take the property for $2,500, and take 5 per cent. commission.I met him in his office, and told him he could have all he could get above $2,300."The testimony of the plaintiff was that, originally, the property was placed with him by C.M. Bishop at $2,300; that he did not know at the time that Munroe had any interest in it; that shortly afterwards, in Bishop's absence, Munroe accosted him, asserting ownership, and saying that he would not take for his interest what Bishop wanted; and that the two men were then joined by Bishop, and after some conversation it was agreed among them that the plaintiff should sell the property for $2,500.In the course of his testimony, the plaintiff also said it was agreed that he should have a commission of 5 per cent.Except as to the matter of commission, we find no contradiction between the plaintiff and Bishop.They both mentioned $2,300 as a price for which the property might be sold.The plaintiff said the price was afterwards changed, and Bishop did not say it was not.Bishop did not deny that the selling price was finally fixed at $2,500.What he denied was that the plaintiff was authorized to sell for $2,500 and take 5 per cent. commission.That the price was $2,500, but that there...