Opinion
Feb. 23, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Hammond & Chilson, John H. Chilson, Loveland, for plaintiffs in error.
Wood & Herzog, David L. Wood, Fort Collins, for defendant in error.
DUFFORD, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.
The position of the parties here is the reverse of their trial court positions. We shall refer to them either by name or by their trial court designations.
The plaintiff, Nicol, is a licensed real estate broker who brought suit to recover compensation for brokerage and sale services rendered for the benefit of the defendants. Two of the defendants, the Whites, were owners of certain real property which became the subject of a binding contract of purchase and sale dated August 13, 1965, executed by them and the other defendant, Larimer County Lands, Inc.
The plaintiff concedes there was no written listing contract in his favor, and his case is pursued on the basis of an implied contract. Whether such a contract did or did not exist was a matter which was strongly contested within the trial court proceedings. A summary of all the evidence bearing on this question would serve no purpose here, but it is significant to our legal conclusions which follow to note certain aspects of the evidence
First, it is clear that the plaintiff's salesman, Norman Munn, had extensive and repeated contacts with the Whites, with their attorney, and with officers of Larimer County Lands, which contacts began early in the sale negotiations stage and continued through almost the entirety of the period of negotiations. Whether he was involved in the negotiations as a volunteer a rather as an employed agent, and whether he was the procuring cause for these negotiations ripening into a sales contract are questions upon which the evidence divides. These issues were resolved by the trial court in favor of the plaintiff, and the record reveals significant evidence in support of its conclusions.
Second, the contract of August 13, 1965, expressly recites that the defendant Larimer County Lands has notice that the Whites have dealt with the Nicol Agency and with Norman Munn and that Norman Munn has dealt with an officer of Larimer County Lands. It then provides that Larimer County Lands will indemnify the Whites and save them harmless against any claim made by the Nicol Agency or Munn 'for any money or moneys owed to said Norman Munn and/or Nicol (sic) Agency by reason of the sale' of the property described in the contract. This language is then described in the contract as 'a further provision to guarantee $27,500 net purchase price to the Vendors.' Whether this language was inserted in the contract to provide for the payment of a real estate commission which the defendants, as between themselves, acknowledged would be validly payable, or whether it was there to indemnify the Whites against a possible but unfounded claim for a commission was also a divisive issue at trial. On this question the trial court again ruled in favor of the plaintiff. There is within the record substantial evidence to support that ruling.
The trial court's ultimate findings, reached after full trial to the court, were, in sum, that the plaintiff had furnished real estate sale and brokerage services under an implied contract for those services and that those services had produced, in the form of Larimer County Land Company, a purchaser willing and able to buy. In effect, it is these findings which defendants challenge here on the grounds they are unsupported by the evidence.
In this jurisdiction, a brokerage contract may be implied from the conduct of the parties, Consolidated Oil & Gas, Inc., v. Roberts, 162 Colo. 149, 425 P.2d 282, if it can be done by evidence which is clear and convincing, Johns v. Ambrose-Williams & Co., 136 Colo. 390, 317 P.2d 897.
Considering the matters of evidence which we have referred to above, we cannot say that there was not before the trial court evidence of the required weight upon which it could base its conclusions that there was an implied contract in favor of the plaintiff, and that plaintiff and his agent had satisfied that contract by being the effective and continuing procuring cause in producing a ready, willing and able purchaser. This being the case, the trial court's judgment will be affirmed even though there might be other evidence which, if believed, would have supported a judgment to the contrary. Fletcher v. Garrett, 167 Colo. 60, 445 P.2d 401.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.