Opinion
No. 70-097 (Supreme Court No. 23188)
Decided April 21, 1970.
Action to recover broker's commission on sale of property under an extension of an exclusive listing agreement which extension was signed by only one of the joint tenants of the property. On appeal by defendants.
Affirmed
1. BROKERS — Exclusive Listing Agreement — Extension — Signed — One Joint Tenant — Agency — Ratified — Other Tenant — Estopped. Where husband, as one joint tenant, was acting as wife's agent in signing an extension to an exclusive listing agreement and his wife ratified and adopted the act of her joint tenant by making no timely protest and where she accepted the benefits of the agreement, then she is estopped from denying the same.
Error to the District Court of Larimer County, Honorable Dale E. Shannon, Judge.
Lawrence A. Long, George G. Johnson, Jr., for plaintiffs in error.
Allen, Mitchell and Rogers, Garth W. Rogers, for defendant in error.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Plaintiffs in error were defendants below and will be referred to herein as defendants or by name; defendant in error was plaintiff below and will be referred to herein as plaintiff or by name.
This case is concerned with whether or not Fort Collins Realty had a right to receive a broker's commission on property which was sold by the defendants while covered by an exclusive sales contract with the plaintiff. The defendants acquired the subject property as an investment through the efforts of the plaintiff about one year prior to the sale involved in this case. At the time of acquisition, the plaintiff realty company prepared the instruments of sale in joint tenancy. Shortly thereafter, both defendants signed an exclusive listing agreement with plaintiff, whereby it was to attempt to sell the property. When the original agreement expired, the realty company secured only the signature of Mr. Helgerson on the extension agreement. The property was sold through defendants' own efforts prior to the expiration of the agreement. Subsequently, the plaintiff sued the defendants for its commission. Trial was to the court which entered judgment against the defendants for the amount of the commission claimed.
The issue of law which this appeal presents is whether or not a realty company may recover a commission where it knew that the property stood in joint tenancy and did not secure the signature of one of the joint tenants on the exclusive listing agreement.
The Helgersons rely heavily on Morrison Morrison v. Sunshine, 142 Colo. 518, 351 P.2d 897. In that case the property was also acquired by the defendants through the realty company which at the time of acquisition drew up the instruments of sale in joint tenancy. Subsequently, an exclusive listing agreement was entered into with the realty company signed only by the husband. Prior to expiration of this agreement, the defendants sold the property to a buyer which they found through their own efforts. In affirming the decision of the trial court, the Supreme Court held that the realty company was not entitled to the commission because it knew the property stood in joint tenancy and it failed to obtain the signature of both joint tenants on the agreement.
Although the fact situations are substantially similar, there are some important distinguishing factors. In Morrison, supra, the husband entered into the exclusive listing with the realty company without the knowledge or consent of the wife. In the case at hand, the agreement, under which the realty company claims its commission, was an extension of an earlier agreement which had been signed by both Mr. and Mrs. Helgerson. The Morrison case did not deal with the questions of agency and ratification. Here, the trial judge found that Mr. Helgerson acted as an agent for his wife in signing the extension agreement and that Mrs. Helgerson, by her acts and conduct, adopted and ratified the act of her husband.
We feel that Jahn v. Park Hill, 141 Colo. 343, 347 P.2d 772, is more applicable and controlling in this case. In Jahn v. Park Hill, supra, the joint tenants sold their property while under an exclusive listing with a real estate broker. The facts in that case are particularly similar inasmuch as it also dealt with an extension agreement, signed by the wife only, while the original agreement was signed by both parties. The issues of agency and ratification were also important factors in determining that case. The trial court entered judgment for the realty company and the Supreme Court affirmed. The trial court found that the husband, by his acts, ratified the extension agreement executed by the wife and that the broker was entitled to a commission. The Supreme Court held that the findings were supported by competent evidence and therefore would not be disturbed.
The record before us clearly supports the trial court's finding that Mr. Helgerson was acting as Mrs. Helgerson's agent in signing the extension agreement; that Mrs. Helgerson ratified and adopted the act of her husband when she did not make a timely protest against the agreement; that by accepting the benefits of the realtor's sales efforts, Mrs. Helgerson is estopped from denying the same.
We, therefore, affirm the judgment of the trial court.
CHIEF JUDGE SILVERSTEIN and JUDGE PIERCE concur.