Opinion
Isaacson, Rosenbaum, Goldberg & Miller, Sheldon E. Friedman, Denver, for plaintiffs in error.
Spiro A. Fotopulos, Denver, for defendant in error.
ENOCH, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The plaintiffs in error were defendants in the trial court and will herein be referred to as defendants. The defendant in error was the plaintiff in the trial court and will herein be referred to as plaintiff or Perrin.
Plaintiff sued defendants for the balance which he claimed was due on real estate commissions. Trial was to the court which entered a judgment for the plaintiff in the amount of $1,650, from which the defendants appeal.
Perrin and defendant, Brad Wolff & Associates, Inc., entered into a written contract dated October 19, 1964, whereby the plaintiff was hired to sell new homes built by the defendant. Perrin was to receive a salary of $500.00 per month plus a commission of $100.00 per house. The salary was to be paid on the 1st and 15th day of each month while commissions were to be paid on the basis of one-half at time of loan approval and one-half at time of closing. It was undisputed that the contract was later orally modified to change plaintiff's compensation to a straight commission basis of $300.00 per house, which was to be paid one-half at time of loan approval and one-half at time of closing. However, the record indicated that the plaintiff was actually paid his commissions on either the 15th or 31st day of the month following loan approval or closing. Plaintiff resigned on January 10, 1966. At this time there were eleven transactions pending, i.e. plaintiff had sold eleven houses, but the closings had not been completed. Plaintiff had been paid the first one-half of his commission on each of these transactions. The action in the trial court arose out of the refusal of the defendants to pay the second one-half of the commissions which plaintiff alleged were due him. The defendants claimed that the agreement between the parties required the plaintiff to perform certain duties after loan approval and prior to closing and that payment of the second one-half of the commissions was contingent upon performance of those duties.
The trial court found that the plaintiff had established the contract and that the defendants did not prove their contention that the second installment of plaintiff's commission was contingent upon the performance of the duties as alleged. In short, the trial judge viewed the contention of the defendants as an affirmative defense, the establishment and proof of which was incumbent upon them. Defendants assign this as error. We agree with the view of the trial judge. The record contains voluminous testimony as to the nature and extent of the duties of a salesman after loan approval and prior to closing. However, it was never established that performance of these duties as a prerequisite to payment was ever contemplated by the parties either at the time of the formation of the original written contract or upon its subsequent modification. There is nothing in the written contract or its modification concerning any duties to be performed other than sell houses.
Weick, Administrator, Etc. v. Rickenbaugh Cadillac Co., 134 Colo. 283, 303 P.2d 685, is controlling in this case. The facts in the Weick case are very similar to this case with the exceptions that the salesman did not quit, but died prior to delivery of automobiles and was paid his commissions quarterly rather than on the 15th or 31st of the month. In that case our Supreme Court stated:
'We are of the view that unless there is an agreement clearly providing to the contrary, a person selling on a commission basis is entitled to commission when a sale is made, irrespective of when shipment takes place. In the case of a salesman working on a commission basis, it is reasonable to assume that his compensation has been earned when he has procured the customer's order although he does not complete his term of employment.'
'It was, therefore the duty of defendant to come forth with proof that the express agreement of the parties was that the commission was not earned until delivery was made.'
As a second assignment of error, the defendants claim the court improperly construed the contract between the parties as to when plaintiff's commissions were earned. It is noted as before that the original contract between the parties merely refers to when the commissions are payable. There were no additional duties defined in the contract that made payment of the second half of the commission contingent upon their performance by the salesman. In view of the holding in the Weick case, and the absence of any agreement to the contrary, we agree with the trial court's construction of the contract.
Judgment affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.