Opinion
March 30, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Neef, Swanson & Myer, Glen B. Clark, Jr., Denver, for plaintiffs in error.
Hindry & Meyer, Charles F. Brega, Denver, for defendant in error.
PIERCE, 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 authority vested in the Supreme Court.
The parties to this appeal appear in reverse order of their appearance below and will be referred to by name. This was an action by Moore Realty Company (Moore) to recover the reasonable value of services rendered by it in the sale of a motel, then owned by the Hillers, and sold on December 1, 1966, to Nick Palese. On January 10, 1966, the Hillers entered into an exclusive listing agreement with Moore for the sale of the motel. This agreement, by its terms, was to terminate in 90 days. There is conflicting evidence as to whether there was an oral extension of this 90-day period.
Evidence shows that Moore, through its agents, advertised the property and showed it to various prospects, including Palese, after the 90-day period had expired. Moore's agents arranged for Palese to look over the motel's books and records and he was provided with an income and expense statement. Considerable negotiation between Palese and the Hillers was carried on through the agency of Moore. Testimony further indicated that the Hillers were anxious to sell the property and would have paid a commission to Moore had the property been sold to Palese in July of 1966, more than two months after the termination of the exclusive listing agreement.
The Hillers and Palese did not contact each other from July until October 2, 1966, when they met and reached an agreement whereby Palese purchased the motel from the Hillers at a price almost identical to the July proposal, less the realtor's commission. The Hillers refused to pay Moore a commission as a result of the October sale.
The court found that the contract of October, 1966, was substantially similar to the contract offered to, but rejected by, the Hillers in July, and awarded Moore judgment for the reasonable value of services performed. In its findings, it stated:
'Even though the exclusive listing agreement may not have been in operation for the full period involved herein, it is clear that the parties were operating on an open listing agreement which was known to the Defendants. It is further clear that the plaintiff did not abandon the listing. Moore Realty was the procuring cause of Nick Palese' purchase of the Paragon Motel. The interest which he acquired, the facts which he learned in July were all carried over into the purchase in October. He would not have gone through the property were it not for the efforts of Moore Realty and he would not have purchased the property were it not for these same efforts.'
The Hillers allege that no exclusive written listing agreement existed at the time of the contract; that there was no open listing agreement; and that it was error for the court to award a real estate commission based on quantum meruit, or otherwise, where no fraud or bad faith was shown.
It has long been the rule in Colorado that contracts for real estate commissions between the principal and his agent or broker may be oral, or may even be implied from the circumstances of the case. Fletcher v. Garrett, 167 Colo. 60, 445 P.2d 401; Brewer v. Williams, 147 Colo. 146, 362 P.2d 1033; Klipfel v. Bowes, 108 Colo. 583, 120 P.2d 959. Although the written 90-day exclusive listing agreement between Moore and the Hillers had expired, the trial court found that the parties were operating under an open listing agreement at the time the sale was consummated in October. There is substantial evidence in the record to support this finding and it will not be disturbed on review. Anderson-Randolph Co., Inc. v. Taylor, 146 Colo. 170, 361 P.2d 142.
The record also adequately supports the court's finding that the sale would not have occurred without the efforts of Moore. It is clear that where an open listing agreement is in effect, and the agent is the procuring cause of the sale, the agent is entitled to reasonable compensation for his services, even though the owner and purchaser thereafter conduct further negotiations resulting in a change of the terms. Heady v. Tomlinson, 134 Colo. 33, 299 P.2d 120; McCullough v. Thompson, 133 Colo. 352, 295 P.2d 221; George v. Dower, 125 Colo. 45, 240 P.2d 897; Liggett v. Allen, 77 Colo. 116, 234 P. 1072. See Rauch v. Rhoades, Colo., 470 P.2d 854.
Hillers' other assignments of error are without merit.
Judgment affirmed.
COYTE and DWYER, JJ., concur.