Farmer v. Phelps , 18 Colo. 126 ( 1892 )

Per Curiam.

Action for the recovery of commission for the sale of real estate. Appellees, as plaintiffs below, allege in their complaint that they were employed by appellant to procure a purchaser for a certain piece of real estate situate within the corporate limits of the city of Denver of which he was the owner; the selling price for the same being fixed at $15,000, of which amount $5,000 was to be paid in cash, the purchaser to assume an incumbrance of $4,000, and the balance of $6,000 to be secured by second trust deed upon the premises; for which services appellant, as it is claimed, promised to pay plaintiffs the usual rate of commission, amounting to $437.50. That on December 31, 1888, plaintiffs did procure a purchaser at the terms named, in the person of Mrs. Wilbelmina O’Connor, who was ready and willing to purchase the same. That this purchaser entered into a contract of purchase, making the first payment thereon to plaintiffs, but that appellant refused to accept her as a purchaser and refused to ratify the sale made by the plaintiffs as his agents. These allegations are supported by proof.

The appellant in his answer and testimony admitted placing the property with plaintiffs for sale for the sum of $15,000, and concedes that in case a sale was effected he was to pay them the amount claimed as commission. Appellant says, however, that the only terms upon which he agreed that appellees might sell the property were that the purchaser should assume an incumbrance of $4,000, and that the balance of $11,000 was to be paid in cash. Five or six days after the negotiations with appellant took place, the defendant admits to having sold the property to plaintiffs’ customer, Mrs. O’Connor, for the sum of $15,000, of which amount $5,000 was paid in cash, $6,000 by a note secured by trust deed upon the premises, the remaining $4,000 being provided for by a note secured by a deed of trust upon the premises.

There is no contest about the amount of the commission as fixed by the jury, provided the plaintiffs are entitled to a recovery. The principal and only assignment of error relied upon by appellant in this court is baséd upon the refusal of the court below to instruct the jury in accordance with his ■fifth request. The instruction as presented is to the effect that if the jury believed that the plaintiffs were authorized to procure a purchaser only upon certain terms, and that they failing to find a purchaser upon those terms abandoned their endeavors to sell the property, the defendant could after-wards sell to the same purchaser on the same or any other terms without being liable to plaintiffs for a commission. Some technical objections are urged to the wording of this instruction. It is wholly unnecessary, however, to examine the questions raised by such exceptions. An examination of the instructions given by the court shows that the instruction in substance was embodied in the third instruction given by the court upon its own motion. It is fair to presume that the fifth request was refused for this reason. It is sufficient, however, for the purposes of this case that the instruction was in fact embodied in the instructions given by the court. In the instructions given the law of the ease is fully and clearly set forth, and thus the sole purpose of instructions was accomplished. The evidence for plaintiffs is clear and strong, and although some of its salient points are contradicted by other evidence, the verdict cannot be disturbed.

The judgment will be affirmed.

■Affirmed.