Cawker v. Apple , 15 Colo. 141 ( 1890 )

Mr. Justice Hayt

delivered the opinion of the court.

The evidence in this case shows beyond controversy that appellant, Samuel M. Oawker, was the owner of a tract of land near the city of Denver, containing about one hundred and twenty acres, and that he authorized appellees to sell the same, or a portion of it, at $155 per acre, less the usual commissions for making such sale, which were to be retained by appellees. It is also shown that this land was subdivided into forty-acre tracts, and that appellees procured a purchaser for one of said subdivisions, at the price and upon the terms fixed by appellant. It is further shown that about three acres of said subdivision belonged to the Union Pacific Bailroad Company, leaving only thirty-seven acres to which appellant could make title. „ Mr. H. W. Woodbury, the purchaser procured by appellees, stood ready and willing to pay for this tract the sum of $5,Y35. This being at the rate of $155 per acre, he was acceptable to the owner. The consummation of the sale was prevented, however, by appellant’s refusing to deed the tract, unless he received pay also for the land owned by the railroad company. Appellant knew at the time he placed the land with appellees for sale that the railroad company owned and occupied a portion thereof. He could not give the purchaser title to the lands so occupied, and was not entitled to pay therefor. Under the circumstances, we are satisfied that his demand is entirely without foundation, and doubtless made for the purpose of defeating the sale. Upon the facts, we think appellees were entitled to the commissions. In the case of Finerty v. Fritz, 5 Colo. 174, it is said: “ But where an agent has produced a purchaser who is acceptable to the owner, and able and willing to purchase on terms satisfactory to the owner, he has performed his duty, and if, from any failure of the owner to enter into a binding contract, or to enforce a contract against the purchaser, the sale is not completed, the agent may recover his commis-sions.”

The judgment is affirmed.

Affirmed.

Mr. Justice Elliott did not participate in this decision, having tried the case below.