Opinion
No. 75-120
Decided April 28, 1977. Rehearing denied May 26, 1977. Certiorari granted August 22, 1977.
In action for real estate broker's commission and including claim of tortious interference with contract, judgment was entered for defendants, and plaintiffs appealed.
Affirmed
1. BROKERS — Exclusive Listing Agreement — Specified Price Limitation — No Entitlement to Commission — Unless Showing — Limitation Met — Waived. Where exclusive listing agreement entered with real estate broker expressly stated that it was an authorization and exclusive right to sell or exchange the property "at a price of $1,500,000 with terms or trade acceptable to [seller]," the quoted phrase authorized variations only in terms other than price; therefore, the real estate broker was not entitled to a commission unless he showed by clear and convincing evidence that this sales price limitation either had been met or had been waived by the seller.
2. Listing Contract — Surrounding Circumstances — Established — Certain Conditions — Given Effect — Commission Denied. Where the express language of a broker's listing contract or surrounding circumstances reveal that the broker is to receive his commission only if certain conditions are met, such conditions will be given effect though the broker is denied a commission.
3. TORTS — Interference — Contractual Relationship — Element — Intent to Induce Breach — Not Shown — Preponderance of Evidence — Dismissal Proper. Tortious interference with a contractual relationship requires as one of its elements an intent by the defendant to induce breach of the contractual relationship; thus, since trial court found that broker had not proved by a preponderance of the evidence that ultimate buyer of the property had any intention of interfering with the agreement between the broker and the seller, the trial court's dismissal of the tortious interference claim was not error.
4. APPEAL AND ERROR — Appeal by Plaintiff — Defendants — Protested Denial of Counterclaim — No Notice of Appeal — Appellate Court — Without Jurisdiction. Where, upon appeal by plaintiff, defendants, in their answer brief, protested the denial of relief on their counterclaim against the plaintiff, the failure of defendants to file a notice of appeal leaves the court of appeals without jurisdiction to consider that issue.
Appeal from the District Court of the City and County of Denver, Honorable Edward J. Byrne, Judge.
Misuraca Beyers, Malcolm A. Misuraca, James L. Beyers, Rothgerber, Appel Powers, Robert S. Slosky, for plaintiff-appellant.
Litvak Karsh, P.C., Alan E. Karsh, for defendants-appellees.
Plaintiff Sherman Agency appeals a judgment denying its claim against defendants J.J. Carey and Carey Realty Co. (Carey) for a commission on the sale of certain real property, and denying its claim against defendants Ben Gay and Ben Gay, Inc., for tortiously interfering with plaintiff's contractual relationship with Carey. Upon trial to the court, plaintiff's claims were dismissed at the close of plaintiff's evidence. We affirm.
At some time prior to 1969 Carey acquired the rights of one Ryder in a large Canadian ranch. A Canadian lender, who subsequently obtained legal title to the property through foreclosure, arranged to allow Carey to obtain the legal title by paying the $800,000 amount originally secured by the mortgage foreclosed upon. Two hundred thousand dollars of this amount was due on or before December 31, 1969, or Carey would lose all rights and interest in the ranch.
On June 20, 1969, Carey entered into an exclusive listing agreement for the Canadian ranch with Marvin Naiman, of the Sherman Agency. Naiman drafted this agreement, which provided:
"This is your authorization and exclusive right to sell or exchange my property known as V Bar V Ranch . . . at a price of $1,500,000 with terms or trade acceptable to me. This authorization shall continue for a period of 180 days from this date. I agree to pay you a fee of 6% based on the sales price or fair market value of the property if an exchange is consummated. This fee will be in cash only in the event that over $300,000 is generated to me in the sale or exchange."
On or before November 1, 1969, Naiman introduced Gay to Carey as a possible purchaser of the ranch. Carey and Gay had no previous acquaintance.
Gay, Carey and Naiman entered into immediate negotiations for purchase of the property. A proposal for a merger of Carey Realty and Ben Gay, Inc., wherein Gay was to provide $150,000 and Carey was to provide $50,000 for payment to the Canadian lender was the main avenue explored by the parties for transferring Carey's equity in the ranch to Gay. Sometime prior to December 28, 1969, it became apparent that Carey could not raise his $50,000 share. Carey then approached Naiman about advancing this money, and Naiman agreed, provided that some arrangement for his commission be made. Naiman agreed to loan this $50,000 to Gay at an interest rate equal to his cost of the money plus a slight markup for administrative costs.
On December 28, 1969, Naiman pressed Carey for an agreement as to what, specifically, Naiman's commission on the sale would be. Carey and Naiman failed to agree on the commission, though Carey acknowledged he would owe Naiman a commission once the transaction was consummated. Later, on the same day, Naiman informed Gay by telephone that, because he could not work out his commission with Carey, he would not loan the money at the previously-agreed rate, but would instead require a 3% markup in the interest rate he charged Carey and Gay. Gay at first seemed to agree to this, but called Naiman back a short time later, and told him he no longer wanted to do business with a man like Naiman, and that the transaction was completely terminated. Gay gave no further explanation for refusing to complete the transaction.
When Carey learned that Gay had terminated the transaction, he went to Gay and prevailed upon him to resume negotiations with him. On December 31, 1969, Gay borrowed $50,000 from a commercial bank on substantially the same terms as the loan originally committed to by Naiman before he demanded the interest premium. This loan, together with Gay's original $150,000, was transmitted to the Canadian lender in time to satisfy Carey's obligation.
Also on December 31, 1969, Carey and Gay entered into an unusual agreement entered "Loan Agreement and Option" wherein Ben Gay, Inc., loaned Carey Realty $200,000 payable December 31, 1970. This loan was evidenced by a $50,000 promissory note secured by certain Colorado property owned by Carey, and by the assignment of proceeds from the sale of wheat owned by Carey in Canada, and by a $150,000 note secured by Carey's interest in the Canadian ranch, i.e., his right to purchase. The agreement further provided that Carey could not prepay the notes, and that Ben Gay, Inc., had an option to purchase an assignment of Carey's interest in the ranch on or before October 15, 1970. Gay could exercise this option by cancelling the notes from Carey and by assuming Carey's liabilities to the Canadian lender of approximately $600,000.
On October 15, 1970, Ben Gay, Inc., in fact exercised its option and took over Carey's interest in the ranch. The court classified this as a sale, and found the consideration to be the cancellation of Carey's debt to Gay, plus the assumption of Carey's liability to the Canadian lender. Also the court found that Carey received the right to 905 shares of Ben Gay, Inc., stock as consideration, though Carey claims that he did not have a right to those shares until certain other monies advanced to him by Ben Gay, Inc., were repaid. The court found that there was insufficient evidence to place a value on these shares, since they were minority shares in a close corporation.
Plaintiff contends that it was error for the court to hold that plaintiff was not entitled to a commission unless it produced a buyer who was ready, willing and able to purchase the property for $1,500,000, a condition which the court found plaintiff had not shown by clear and convincing evidence that it had met. We disagree.
[1] The agreement expressly states that it is an authorization and exclusive right to sell or exchange the property "at a price of $1,500,000 with terms or trade acceptable to me." We construe this quoted phrase to authorize variations only in terms other than price. Therefore, there is no statement in the agreement providing that plaintiff was authorized to sell or exchange at less than $1,500,000, and plaintiff was not entitled to a commission unless he showed by clear and convincing evidence, Johns v. Ambrose-Williams Co., 136 Colo. 390, 317 P.2d 897, that this sales price limitation either had been met or had been waived by defendant. Plaintiff points to allegedly contradictory clauses in the listing agreement, but inasmuch as plaintiff's agent, Naiman, drafted the agreement, any ambiguities in it are to be construed against plaintiff. Wehner v. Schrader, 119 Colo. 518, 205 P.2d 225.
The case at hand arose before the effective date of § 13-25-127, C.R.S. 1973, which now requires only proof by a preponderance of the evidence in all civil actions.
[2] Where the express language of the contract or surrounding circumstances reveals that a broker is to receive his commission only if certain conditions are met, such conditions will be given effect though the broker is denied a commission. See Scott v. Huntzinger, 148 Colo. 225, 365 P.2d 692; Hodgin Sharman v. Palmer, 72 Colo. 331, 211 P. 373. While plaintiff did produce evidence extrinsic to the record itself, which could have supported a finding that the $1,500,000 sales price requirement had been waived as a condition precedent to receiving a commission, this evidence did not as a matter of law compel a finding to that effect, and the evidence justified the court's conclusion that the conditions of the contract had not been met. If reasonable men could differ in the inferences and conclusions to be drawn from the evidence as it stood at the close of the plaintiff's case, then we cannot interfere with the findings and conclusions of the trial court. Teodonno v. Bachman, 158 Colo. 1, 404 P.2d 284.
Plaintiff also misapprehends the effect of the court's conclusion that it could not place a value on the 905 shares of Ben Gay, Inc., stock which Carey ultimately received. Because it was necessary for plaintiff to prove by clear and convincing evidence that the sale was for at least $1,500,000, it was also necessary for plaintiff to prove that the stock had a value sufficient to make the total consideration received by Carey at least $1,500,000. While it is true that uncertainty as to the amount of damages does not preclude recovery, once the fact of damage has been established, Peterson v. Colorado Potato Flake Mfg. Co., 164 Colo. 304, 435 P.2d 237, establishment of the fact of damage here depended on proof with reasonable specificity of the value of this stock. We find no error in the court's conclusion that plaintiff failed to establish by clear and convincing evidence that the value of the stock was sufficient to make the total consideration received at least $1,500,000.
Plaintiff also claims error in the court's dismissal of its claim against Ben Gay and Ben Gay, Inc., for tortious interference in its contractual relationship with Carey. This contention is without merit.
[3] Tortious interference requires as one of its elements an intent by the defendant to induce breach of the contractual relationship. Comtrol, Inc. v. Mountain States Telephone Telegraph Co., 32 Colo. App. 384, 513 P.2d 1082. Here, the court found that plaintiff had not proven by a preponderance of the evidence that Gay had any intention of interfering with the agreement between plaintiff and Carey. The evidence in the record supports this finding, and it is therefore binding on review. Watson v. Settlemeyer, 150 Colo. 326, 372 P.2d 453.
[4] Following the dismissal of plaintiff's claims, defendants' counterclaim against plaintiff was tried. After plaintiff and defendants each presented their evidence, the court denied defendants relief on the counterclaim. In their answer brief, defendants protest the denial of relief on their counterclaim against plaintiff. However, defendants never filed a notice of appeal in this case, and therefore we are without jurisdiction to consider the issue. Chapman v. Miller, 29 Colo. App. 8, 476 P.2d 763.
Judgment affirmed.
JUDGE RULAND and JUDGE KELLY concur.