Zeigler v. Butler

• Decision Date: 04 February 1918
• Docket Number: 8971.
• Citation: 64 Colo. 274,171 P. 64
• Parties: ZEIGLER v. BUTLER.
• Court: Colorado Supreme Court

171 P. 64

64 Colo. 274

ZEIGLER v. BUTLER.

No. 8971.

Supreme Court of Colorado

February 4, 1918

Error to Prowers County Court; C. B. Thomas, Judge.

Action by R. M. Zeigler against N.E. Butler. Judgment for defendant and plaintiff brings error. Reversed, with instructions.

Gordon & Gordon, of Lamar, for plaintiff in error.

O. G Hess, of Carthage, Mo., and Fred W. Cuckow, of La Junta, for defendant in error.

SCOTT J.

This action is by the plaintiff in error, plaintiff below, to recover a broker's commission for the negotiation of a sale or trade of certain real estate for the defendant.

The defendant owned two houses in the city of Lamar, which he valued at $3,000. He learned through plaintiff of a stock of groceries for trade at Sugar City. He asked plaintiff to negotiate a trade of his houses for the stock of goods. This plaintiff proceeded to do, with the result that the owner of the goods sent an agent to Lamar, who in company with the plaintiff inspected defendant's property. Afterward the owner of the stock of goods asked defendant to come to Sugar City and inspect the same. This the defendant did, and while in Sugar City the trade was consummated. The houses of defendant were taken in on the trade at the value of $3,000. The goods were exchanged at invoice price.

Upon the conclusion of plaintiff's evidence the court upon motion of defendant directed a verdict for defendant. In sustaining the motion for a directed verdict the court found:

'It is my opinion that this plaintiff did abandon his agency by his refusal to accompany Mr. Butler to make that trade, and he further proved that abandonment by his statement, as he himself has admitted that he didn't care whether the trade was made or not. Whether or not it was made in Mr. Butler's presence, or whether it was made in the presence of others, it was made, and it is not denied; and it is my opinion that the motion to instruct the jury to find a verdict for the defendant should be sustained.'

This was error. The finding admits the employment, concerning which there is no doubt, and the mere alleged statement of plaintiff did not constitute abandonment of his agreement. The statement was not made to defendant but to a distinterested party, at a time when plaintiff was impatient with defendant's delay, but the defendant proceeded thereafter, and the trade was consummated as stated.

It appears that when defendant was about to go to Sugar...