Summary
In Horton-Cavey Realty Co. v. Spencer, 37 Colo. App. 96, 544 P.2d 998 (1975), we held that a clause identical to the one at issue here was clear and unambiguous, and the parties would be held to the plain and accepted meaning of the terms though the result may be harsh.
Summary of this case from Berry Company v. Denver American FamilyOpinion
No. 74-563
Decided November 13, 1975. Rehearing denied November 28, 1975. Certiorari denied January 19, 1976.
In action by broker to recover commission on real estate sale, trial court denied relief, and broker appealed.
Affirmed
1. BROKERS — Real Estate Listing Agreement — Sale After Listing Term — Buyer — Disclosed to Broker By Seller — No Recovery. Where real estate listing agreement provided that broker would be paid commission if property were sold within 180 days following expiration of listing term to anyone with whom the broker had negotiated and whose name had been "disclosed to the owner by the broker during the listing period," and where the party who independently executed sales contract with the seller was one with whom the broker had negotiated, but whose name had been provided to the broker by the prospective seller, the express terms of the listing agreement precluded the broker from recovering a commission on the sale.
Appeal from the District Court of the County of Arapahoe, Honorable Marvin W. Foote, Judge.
West Weaver, P.C., Paul G. West, for plaintiff-appellant.
Tinsley, Frantz, Fleming Davidson, P.C., William S. Fleming, for defendant-appellee.
Division III.
Plaintiff, Horton-Cavey Realty Company (Horton-Cavey), appeals from a judgment denying it a broker's commission on the sale of certain real estate. We affirm.
Horton-Cavey and the defendant, William Spencer, entered into an exclusive listing agreement pertaining to real estate owned by Spencer. This agreement set forth detailed provisions pertaining to the sale of property, and further provided that Spencer, as owner, would pay to Horton-Cavey a commission under the following circumstances:
"(1) in case of any sale or exchange of same within said listing period by the undersigned owner, the said broker, or by any person, or (2) upon the said broker finding a purchaser who is ready, willing and able to complete the purchase as proposed by the owner, or (3) in case of any such sale or exchange of the said property within the 180 days subsequent to the expiration of this agreement to any party with whom the said broker negotiated and whose name was disclosed to the owner by the broker during the listing period."
At some time after the listing agreement had been signed, Mr. Bowman, an agent of Horton-Cavey who was attempting to effect a sale, was advised by Mrs. Spencer that the Spencers had been contacted by a Mr. Robinson prior to execution of the listing agreement, and she suggested that Bowman contact him. Bowman did so. In the ensuing weeks several written offers were submitted to Spencer by Bowman from Robinson, but a satisfactory agreement was not reached and no sale was consummated with Robinson, nor with any other prospective purchaser within the initial listing period.
Within the 180-day period following the expiration of the listing agreement, Spencer entered into a contract with Robinson for the purchase and sale of the subject property at a price which was less than that provided in the listing agreement but on terms more favorable than any of Robinson's previous offers submitted to the Spencers through Bowman. Horton-Cavey then made demand for a commission, and upon being refused, instigated this suit.
The trial court concluded that there was an ambiguity in the portion of the 180-day clause which states "any party with whom the said broker negotiated and whose name was disclosed to the owner by the broker during the listing period." The court resolved that ambiguity by construing it against Horton-Cavey, the party who had supplied the listing agreement, and further found that Horton-Cavey's efforts through Bowman had not been the procuring cause of the sale. Although we disagree with this reasoning, we find the result to be correct and affirm the judgment. See Metropolitan Indust. Bank v. Great Western Products Corp., 158 Colo. 198, 405 P.2d 944; Klipfel v. Neill, 30 Colo. App. 428, 494 P.2d 115.
I.
Horton-Cavey's right to recover a commission is dependent on the terms of the listing agreement. Scott v. Huntzinger, 148 Colo. 225, 365 P.2d 692. In regard to the 180-day period, the agreement does not condition the payment of the commission on the broker having been the procuring cause of the sale; hence, plaintiff need not show that it was the procuring cause in order to recover a commission here. See Delbon v. Brazil, 134 Cal. App.2d 461, 285 P.2d 710; Galbraith v. Johnston, 92 Ariz. 77, 373 P.2d 587. Consequently, the trial court's finding that Horton-Cavey was not the procuring cause of the sale is irrelevant to a resolution of the claim.
II.
[1] We find no ambiguity in the listing agreement. It provides that the broker will be paid a commission in the event that the property be sold within the 180-day period following the expiration of the listing term to any party with whom the broker "negotiated" and whose name was "disclosed to the owner by the broker during the listing period."
Words used in a contract should be generally accorded their plain and accepted meaning, Hammond v. Caton, 121 Colo. 7, 212 P.2d 845, subject to interpretation from the context and circumstances of the transaction. Kingsbury v. Riverton-Wyoming Refining Co., 68 Colo. 581, 192 P. 503. The key word in the 180-day clause is "disclose." In the context of the subject listing agreement and under the surrounding circumstances, we do not find the use of this word to be ambiguous. The plain and accepted meaning of "disclose" is "to make known that which before was unknown." Ballentine's Law Dictionary p. 353 (3rd ed. S. Arneson 1969). Thus, Horton-Cavey did not "disclose" to defendant the name of the buyer, and it is not entitled to a commission on the sale.
While the result reached here might appear harsh, there is no evidence in this record of any overreaching on the part of the seller or any mutual mistake or other disabling factor which would relieve either of these parties from this agreement, which was apparently made at arms-length and was supplied by the party which now seeks to avoid its terms. Hence, we must enforce the contract as it was written. See Sedalia Land Co. v. Robinson Brick Tile Co., 28 Colo. App. 550, 475 P.2d 351; and Hyde Park-Lake Park, Inc. v. Tucson Realty Trust Co., 18 Ariz. App. 140, 500 P.2d 1128.
Judgment affirmed.
JUDGE STERNBERG concurs.
JUDGE VAN CISE dissents.