Wade v. Nowels , 78 Colo. 585 ( 1926 )

NOWELS had a verdict and judgment in an action by Wade against him for a commission on sale of land, and Wade comes here on error.

The complaint alleges that on or about November 1, 1920, Nowels employed Wade to find a purchaser for a large ranch in Baca county and promised to pay him a commission of five per cent of the price of the land or any part thereof when a binding contract to buy had been made with defendant by such purchaser, and that the plaintiff procured one Brooks who entered into such a contract. The answer denied both the promise to pay a commission and that plaintiff procured the purchaser. The issues, then, were: (1) Promise to pay commission or not; (2) production of a purchaser or not.

The plaintiff testified to a promise by defendant on or about November 1, 1920; to the production of Brooks as a purchaser the following May, and a contract of sale between Brooks and defendant in June, 1921. The defendant, against objection and exception, was permitted to show written contract of option made before October 1, 1920, between defendant of the one part and plaintiff and another of the other part, whereby plaintiff and his associate had a net price on the land now in question and other land and that December 21, 1920, they sold that other land, 800 acres, and made a profit greater than five per cent. The admission of this evidence is assigned as error. It was right. Upon a denial, any fact inconsistent with the fact denied is relevant to the issue, and, if material and competent, as this evidence was, must be admitted. Paynev. Williams, 62 Colo. 86, 160 P. 196; Benish v. Jones,68 Colo. 484, 190 P. 538; Gromer v. Papke, 71 Colo. 440,207 P. 862; Bijou Dist. v. Cateran Co., 73 Colo. 93,213 P. 999; Schraeder v. Mitchell, 73 Colo. 320, 322,215 P. 147; Casco Co. v. Central Co., 75 Colo. 478, 480,226 P. 868. The evidence in question showed conduct of the plaintiff inconsistent with his claim that defendant had made the contract of November 1st, and so was properly admitted; its weight, of course, was for the jury.

It is claimed that instructions were erroneous. The court gave instruction No. 2 as follows: "The fact that the transaction which the broker was authorized to negotiate is finally consummated does not of itself entitle the broker to a commission; he must have been the procuring cause of the transaction, in the absence of some agreement between him and the principal to the contrary, else no compensation is due. This is true, although the broker had negotiated with the person with whom the principal finally contracted; the fact that a broker finds a customer with whom the principal closes a contract without the broker's further aid does not give him a right to a commission, unless he was the procuring cause of the transaction."

The plaintiff objected and excepted on the ground that it was not applicable to the facts in evidence or the issues. The exceptions were well taken. There was no issue as to the plaintiff procuring the sale or being the procuring cause of it There was an issue as to his production of a purchaser, and, if he had produced one, pursuant to the contract of employment alleged, he would be entitled to the commission. Craft v. Livernash, 27 Colo. App. 1,146 P. 121; Fist v. Currie, 49 Colo. 284, 112 P. 689. The instruction requires him to further prove that he was the procuring cause of the sale, and so was erroneous. Instruction 2 1/2 cannot cure the error.

Judgment reversed and new trial granted.

MR. CHIEF JUSTICE ALLEN and MR. JUSTICE WHITFORD concur.