Opinion
Rehearing Denied Sept. 9, 1975.
Page 1258
Reynolds, Connell, Moran & Banman, Larry W. Moran, John M. Banman, Boulder, for plaintiff-appellee.
Hutchinson, Black, Hill, Buchanan & Cook, John A. Purvis, Boulder, for defendant-appellant.
RULAND, Judge.
Defendant, Sherrelwood, Inc., appeals from a judgment awarding plaintiff a real estate commission in the amount of $25,000. We affirm.
The following facts are not disputed. Sherrelwood owned approximately 18.4 acres of undeveloped real estate upon which it had obtained approval for a planned unit development in the City of Boulder. The shareholders of Sherrelwood were George Doty, who owned 25 percent of the stock, and Jack Fowler and his wife, who owned the remaining 75 percent.
In January of 1972, plaintiff, a licensed real estate broker, inquired of Doty whether the Sherrelwood property was for sale. Doty conferred with Fowler and then advised plaintiff that if a qualified buyer were obtained, Sherrelwood would sell the property together with the approved planned unit development plan for $500,000 and would pay plaintiff a commission of five percent of the sales price. Fowler, also a licensed real estate broker, testified that plaintiff's commission was limited to five percent because the Fowler Real Estate Agency was the listing broker and it was understood that an additional five percent commission would be paid to that firm.
On January 26, Doty corresponded with plaintiff on Fowler Real Estate Agency stationery advising that if 'we do not have substantial interest on the part of a qualified buyer by not later than February 8th, we are going ahead and develop it ourselves.' The testimony is in conflict as to the oral instructions given plaintiff in conjunction with the letter of January 26. Fowler and Doty testified to the effect that plaintiff was advised that any sale must involve an exchange of property in order to avoid adverse personal income tax consequences to Fowler. However, plaintiff testified that she was instructed to obtain as much cash as possible in conjunction with any offer.
On February 7, 1972, plaintiff presented an offer to Fowler for purchase of the property in the form of a specific performance contract executed by Keith H. Zook as 'trustee' for a sales price of $500,000 payable by cash or certified check at closing. Fowler, with Doty's acquiescence, declined to accept the offer.
The trial court resolved the conflicting evidence in plaintiff's favor by finding that there was no requirement in the listing that plaintiff arrange an exchange of property, and that plaintiff was instructed to obtain as much cash as possible. Based on Fowler's testimony, the trial court also found, in effect, that the offer complied with the terms of the listing and would have been consummated if Fowler's tax problem could have been resolved. There being evidence to support these findings, we are bound thereby. Whatley v. Wood, 157 Colo. 552, 404 P.2d 537; Thiele v. State, 30 Colo.App. 491, 495 P.2d 558.
Sherrelwood does not contest the findings of fact by the trial court. However, Sherrelwood contends, as a matter of law, that plaintiff is not entitled to recover a commission because Sherrelwood and the purchasers did not reach mutual agreement on various terms in the tendered contract. Under the circumstances of this case, Sherrelwood's contention has no merit.
Based on the evidence, the trial court specifically found that certain of the terms about which Sherrelwood complains were authorized by Doty or Fowler or resulted from erroneous information supplied to plaintiff by them, and thus we do not discuss those terms here. The remaining terms which were not specifically authorized by Doty or Fowler consist of the amount of earnest money tendered by the purchasers, the date upon which Sherrelwood was to furnish title insurance, and the date specified in the offer upon which a survey was to be supplied. Sherrelwood also relies on evidence that certain easements were not excepted from the description, and that the offer required the Boulder City Council to approve the planned unit development plan even though, according to Fowler, this was neither necessary nor possible.
Plaintiff was entitled to a commission if she produced a buyer ready, able, and willing to purchase on the terms proposed by Sherrelwood, even though Sherrelwood refused to proceed with the sale. See s 12--61--201, C.R.S.1973; Circle T. Corp. v. Crocker, 155 Colo. 263, 393 P.2d 744. Since the items about which Sherrelwood now complains were apparent on the face of the written offer at the time it was presented and reviewed, and since the trial court found on supporting evidence that the contract was rejected not for lack of agreement on these terms but for reasons unrelated to the terms of the listing, the broker has earned a commission. See Dickey v. Waggoner, 108 Colo. 197, 114 P.2d 1097; Bourke v. Van Keuren, 20 Colo. 95, 36 P. 882.
In the alternative, Sherrelwood urges that the 'defects' in the contract, when considered together, are 'substantial,' and thus pursuant to the rule adopted in Horton-Cavey Realty Co. v. Reese, 34 Colo.App. 323, 527 P.2d 914, it was unnecessary for Sherrelwood to enumerate same in rejecting the offer. We disagree. Unlike Horton-Cavey Realty Co., this is not a case where the offer was rejected without explanation. Rather, a specific reason was given, Viz., income tax ramifications, and this was the only reason the contract was rejected. Since the offer would have been accepted but for the tax problems, the broker has earned a commission. Cf. Watson v. United Farm Agency, Inc., 165 Colo. 439, 439 P.2d 738.
Relying on Weitbrec v. Morris, 62 Colo. 345, 163 P. 1119, Sherrelwood also complains that only the name of one of the three individuals who were to join together in the purchase was disclosed in the contract, and that, therefore, the tendered contract could not constitute an offer without disclosure of the names of all the purchasers. We disagree. In Weitbrec the names of the purchasers were not disclosed even after the broker submitted the offer. Here, the trial court's finding that Zook was ready, able, and willing to purchase is not disputed, and thus a failure to insert the names of his co-purchasers in the contract is of no consequence when those names were disclosed to Sherrelwood after the offer was presented and when Sherrelwood did not refuse the offer for failure to make the disclosure. See Annot., 156 A.L.R. 602 at 605.
We have reviewed Sherrelwood's other allegations of error and find them to be without merit.
Judgment affirmed.
SILVERSTEIN, C.J., and KELLY, J., concur.