Opinion
Ralph A. Colo, Robert A. Schiff, Denver, for plaintiff in error.
Zall & Zall, 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.
This case deals with the question of whether or not Beatrice Lewis owes George Kern, a real estate broker, a commission for the services performed by his employee, Carl Wilm, in selling her property. Plaintiff in error, Wilma Kern, is the administratrix of deceased, George Kern. The parties appear in the same order as they appeared below. Trial was to the court which granted the defendant's motion to dismiss made at the close of the plaintiff's case.
The record indicates that Wilm and Lewis entered into an oral contract some time in January of 1964, whereby Wilm was to attempt to sell her apartment building. Wilm contracted Fanning who was interested in purchasing the property. On January 22, 1964, Wilm and Fanning prepared a contract which they presented to Lewis. The contract provided for a purchase price of $60,000, with a down payment of $550 and provisions for the balance of the purchase price to be a promissory note secured by a deed of trust. Lewis rejected this offer because she wanted a minimum of $5,000 down, which Fanning was unable to meet. Later that month, Fanning presented two subsequent proposals which were also rejected by Lewis because they were substantially no different from the first proposal and Fanning still could not comply with the minimum down payment demand. Wilm claimed that he continued to show the property to others, but was unable to procure any other potential buyers. On the other hand, Mrs. Lewis claimed that she never heard from Wilm again until demand for the commission was made upon her. It is undisputed that Wilm never presented another proposal to the seller.
Fanning, on his own effort, subsequently associated himself with Ott. Together they obtained a loan, essentially on Ott's credit, which was sufficient to meet Lewis' down payment demand. Sale of the property by Lewis to Fanning and Ott took place on March 6, 1964. Mrs. Lewis did not pay any broker's commission. Fanning has since purchased Ott's interest. According to the record, both Fanning and Wilm testified that they tried to contact each other, without success, during the month of February. Each claimed that the other was remiss in not returning the other's calls. There was no actual contact between Wilm and Fanning or between Mrs. Lewis and Wilm after the rejection of the offers made in January.
Before a broker can be said to have earned his commission, he must produce a purchaser ready, willing and able to buy on the owner's terms, and he must be the efficient agent or procuring cause of the sale. Heady v. Tomlinson, 134 Colo. 33, 299 P.2d 120. Unless the contract between the broker and seller to sell property provides otherwise, and in the absence of collusion or bad faith on the part of the seller, the broker has not established his right to a commission where the broker merely introduces the eventual buyer to the seller and without any further effort on the part of the broker, the buyer and seller eventually come to terms. The broker must play an active role in concluding the sale in order to qualify as the predominating or effective cause of the sale.
Both allegations of error in this case deal with evidentiary question, namely, did the evidence support a finding that the plaintiff was not the procuring cause of the sale, and that plaintiff did not produce a purchaser ready, willing and able to buy. It has been established by Johns Ambrose-Williams, 136 Colo. 390, 317 P.2d 897, that to sustain an action for a real estate commission, a broker must do so by clear and convincing evidence. This rule was reaffirmed in Fistell v. Thomas et al., 144 Colo. 94, 355 P.2d 105. Although the Johns case, Supra dealt with the question of whether or not there was a contract between the broker and the seller, we feel that its holding is equally applicable to the questions raised by this appeal.
Inasmuch as the trial court entered judgment on the basis of defendant's motion to dismiss at the close of plaintiff's evidence, we adhere to the rule set forth in Teodonno v. Bachman, 158 Colo. 1, 404 P.2d 284.
'It is true that when reviewing a dismissal entered at the conclusion of the plaintiffs' evidence in a jury trial, the rule urged by the plaintiffs that the evidence must be viewed in the light most favorable to the plaintiffs is applicable. Eberle v. Hungerford, 130 Colo. 167, 274 P.2d 93; Huddleston v. Ingersoll Co.,Blair v. Blair, 109 Colo. 134, 123 P.2d 1016. But when the trial is to the court, as it was here, the trial court is the finder of the fact and may make its findings and render judgment against the plaintiffs at the close of the plaintiffs' case. Rule 41(b)(1), R.C.P.Colo. The question on review of such action is not whether the plaintiffs made a prima facie case, but whether a judgment in favor of the defendant was justified on the plaintiffs' evidence. If reasonable men could differ in the inferences and conclusions to be drawn from the evidence as it stood at the close of the plaintiffs' case, then we cannot interfere with the findings and conclusions of the trial court. 144 Colo. 442, 357 P.2d 84; Niernberg v. Gavin, 123 Colo. 1. 224 P.2d 215.'
We think that reasonable men could have differed upon the inferences and conclusions to be drawn from the evidence presented in this case. The evidence presented at trial raised questions of fact as to Fanning's ability to purchase and as to whether Wilm was the procuring cause of the sale. The trial judge obviously did not believe that the plaintiff met the required burden of proof and we find no reason to disturb the factual findings of the court or the results.
Judgment is affirmed.
SILVERSTEIN, C.J., and DWYER, J., concur.