Opinion
Rehearing Denied Sept. 10, 1974.
C. Hamilton Evans, Denver, for plaintiff-appellee.
Joseph P. Jenkins, Estes Park, for defendants-appellants.
SMITH, Judge.
This is an appeal from a $25,000 judgment obtained by the plaintiff against the defendants-appellants for a real estate commission found to be due and owing. The sole issue on appeal is whether plaintiff established by clear and convincing proof its right to recovery. In particular, defendants assign error to the following findings and conclusions made by the trial court at the conclusion of the evidence: (1) That the plaintiff was the agent and the efficient procuring cause of the sale of the defendants' property; (2) that the owner of property cannot ignore a broker who has introduced the owner to a prospective buyer, and, thus avoid the payment of a commission; and, (3) that inadmissible evidence prejudiced its case. We affirm.
The cause of action accrued prior to July 1, 1971, and so is not subject to the statutory provision that proof be by a preponderance of the evidence. 1971 Perm.Supp., C.R.S.1963, 52--1--28.
The transactions between the parties, as found by the court, occurred essentially as follows: Defendants, owners of a lodge in Estes Park, and plaintiff, a real estate broker licensed in Colorado, entered into an oral open listing contract on April 10, 1970. This listing agreement, entered into with a representative of the plaintiff and with both defendants present, provided that plaintiff, as agent of the defendants, sell defendants' lodge for $490,000 with $100,000 down payment, and provided for a broker's commission. From April 10, 1970, until the property was sold by defendants in November 1970, the oral listing of the property for sale with the plaintiff was in full force and effect and had never been withdrawn or canceled by the defendants.
On September 23, 1970, plaintiff showed the property to a prospect with one of the defendants accompanying plaintiff's representative and the prospect. During these negotiations the original price was amended by the defendants to $475,000 with a $25,000 broker's commission. This prospect, however, declined to purchase the property. On October 8, 1970, one Wayne Zenor, a prospective buyer of the lodge, called at plaintiff's office in Denver and inquired about motel or lodge properties. At that time, Zenor was informed by plaintiff that defendants' property was available. Plaintiff's representative then phoned defendants in Zenor's presence and arranged an appointment for him to visit the property with one of the defendants.
From that date on, the court found that both defendants and Zenor ignored the plaintiff completely and failed to give plaintiff any information as to what had happened to his prospect or any opportunity, whatsoever, to continue negotiations between defendants and Zenor. On October 14, 1970, plaintiff wrote to Zenor requesting his comments and impressions as to defendants' lodge. On October 31, 1970, plaintiff wrote defendants requesting information as to any further contacts with Zenor. Neither of these inquiries were answered.
On November 17, 1970, defendants sold their lodge to a corporation which Zenor and an associate had organized for the purpose of operating the lodge. The sales contract contains an express provision to the effect that if there are any claims for a real estate commission on behalf of the plaintiff or any other realtor, which the contracting parties agree between themselves to be without merit, the defendants and buyer will share equally all costs of defending such claims as well as the payment of any settlement or judgment arising therefrom. It is interesting to note that the final purchase price was $450,000 or approximately the amended offering price minus a $25,000 broker's commission.
In a trial to the court, its findings are binding on appeal unless the evidence is wholly insufficient to sustain them. Cowgill v. Neet, 127 Colo. 184, 255 P.2d 399. The degree of proof required to sustain this action for a real estate commission was by clear and convincing evidence. See Geier v. Howells, 47 Colo. 345, 107 P. 255. Careful examination of the record convinces us that there is a sufficient quantum of evidence to support, by the required burden, each of the material findings of the trial court.
Defendants assert that the price paid by the ultimate buyer was much less than the terms discussed at the time of the listing and, that therefore, plaintiff had not produced a buyer ready, willing and able to purchase. Defendants also assert that plaintiff did nothing more than introduce the defendants and buyer and, therefore, cannot equitably demand a fee of $25,000. While it has been held that the mere introduction of buyer and seller is insufficient to warrant the paying of a commission, Heady v. Tomlinson, 134 Colo. 33, 299 P.2d 120, here, defendants' argument overlooks the fact that after plaintiff brought buyer and sellers together, it was prevented from negotiating a sale with its prospect upon other terms, and was ignored and circumvented. Under such circumstances, we hold that where an owner deals directly with the prospect while the broker is attempting to negotiate with them, and the broker is prevented from so doing by the owner and the prospect, the owner may not raise as a defense the question of the broker not being the efficient and procuring cause of the sale. See Houston v. H. G. Wolff & Son Investment Co., 94 Colo. 73, 28 P.2d 255. Nor may an owner, who is introduced to a prospective buyer by a broker with whom he has listed his property, ignore the broker's attempt to negotiate the sale and enter into a sales contract with the buyer without also becoming liable for the real estate commission. See Brewer v. Williams, 147 Colo. 146, 362 P.2d 1033.
The defendants also argue that the court erred in overruling defendants' objections to the admissibility of certain exhibits and testimony related thereto. These exhibits consisted of correspondence between the plaintiff and buyers, inquiring as to buyer's impression of defendants' property, and between plaintiff and other brokers concerning buyers as prospects. Defendants' argument is without merit. This correspondence is clearly relevant to show plaintiff's efforts to sell the property, and further, in a trial to the court, it is presumed that the court has disregarded any evidence which is immaterial, incompetent, irrelevant, or hearsay. Dreiling Motor Co. v. Travelers Indemnity Co., 29 Colo.App. 163, 482 P.2d 999.
Judgment affirmed.
PIERCE and RULAND, JJ., concur.