Opinion
Rehearing Denied March 11, 1975.
Page 348
Fischer, Wilmarth & Hasler, Elery WilMarth, Timothy Hasler, G. William Beardslee, Fort Collins, for plaintiff-appellee.
Francis A. Benedetti, Wray, Earl W. Haffke, Fort Morgan, for defendants-appellants.
BERMAN, Judge.
This is an action by a broker to recover a real estate commission. We affirm the judgment entered for the broker.
The broker was employed by the sellers on an open listing to sell certain property. On November 3, 1971, the broker presented to the sellers a real estate sales agreement signed by the prospective purchasers offering to purchase the property for $70,000. This agreement was not signed by the sellers. The sellers prepared a 'counter-proposal,' which was signed by both parties on November 9, 1971. By its terms, the 'counter-proposal' provided that except as changed in that agreement, 'all other terms an conditions (of the November 3 agreement were) to remain the same.' The closing was to occur on or before December 31, 1971. On November 29, 1971, the purchasers and sellers cancelled the contract by 'mutual agreement.' The broker filed this action for a commission of 8% Provided for in the contract.
After a trial, the court found that the two documents (of November 3 and 9) together constituted the agreement to sell and purchase the property; that the broker had procured the purchasers; that a valid contract of sale was entered with fixed and certain terms between the purchasers and the sellers; that the purchasers were ready, willing, and able to carry out the agreement, but that the sale was never consummated due to sellers' cancellation. The court entered judgment in favor of the broker. The sellers appeal.
The sellers contend that there was never a binding contract of sale, that the contract was incomplete, that certain conditions precedent were not met, and that the broker failed to prove the purchasers' financial ability to buy.
The trial court set out in great detail the evidence, the terms of the real estate sales agreement and counter-proposal, and found that they contained all the required elements of a valid and complete contract. Where there is competent evidence, as there is in this case, from which the trier of fact may find that a contract was entered into, a finding in accordance therewith will not be disturbed. Palmer v. Gleason, 154 Colo. 145, 389 P.2d 90.
The trial court found that 'if there were contingencies and conditions to be met before the sale could be consummated, the (sellers') cancellation of the agreement prior to the time period having expired in which these conditions could be either met or fail made it impossible for and defeated any opportunity for the completion (of any such contingencies and conditions) and consummation of the sale.' Where the seller's conduct prevents consummation of a sale, he is not relieved of his liability to pay his broker. Gray v. Blake, 128 Colo. 381, 262 P.2d 741; Dickey v. Waggoner, 108 Colo. 197, 114 P.2d 1097. Similarly, where a valid contract has been entered into between the owner and purchaser, the broker's right to his commission is not defeated by their mutual rescission. Anderson v. Shain, 1 Wash.App. 469, 462 P.2d 566; 12 Am.Jur.2d Brokers s 213.
The sellers contend that the broker did not prove the financial ability of the purchasers to buy, and that such ability was lacking as evidenced by the fact that no down payment was to be made, and that the purchasers expected to rely on the farm's yield to pay the principal and interest. The lack of a down payment has no bearing on a purchaser's financial ability to pay where the contract requires no such payment. Furthermore, in an action to recover a broker's commission, it is not material how the purchaser expects to obtain the funds with which to complete the transaction. Liggett v. Allen, 77 Colo. 116, 234 P. 1072. There was also evidence from which the trial court could find that the broker procured a purchaser ready, willing, and able to buy at the agreed price, and that he was entitled to his commission. See Watson v. United Farm Agency, Inc., 165 Colo. 439, 439 P.2d 738; Aslan v. Parker Realty Co., 78 Colo. 235, 242 P. 45.
Judgment affirmed.
ENOCH and STERNBERG, JJ., concur.