Opinion
Oct. 22, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 905
Robert L. Pitler, Denver, Barclay L. Westerfeld, Kent Jay Levine, Denver, for plaintiffs-appellants.
No appearance for defendants-appellees.
VAN CISE, Judge.
Plaintiffs, a real estate brokerage firm and two of its employees, appeal from a judgment in their favor for a real estate commission from defendants, owners of certain listed property. They claim the amount of the judgment should be increased from 7% Of $16,000 to 10% Of $40,000. We affirm in part and reverse in part.
The owners entered into a three-month 'exclusive right to sell listing contract' with the plaintiff corporation covering five contiguous lots at a price of $40,000. In addition, the owners agreed to pay a commission to the realty firm in case of any sale of the property within the 180 days subsequent to the expiration of the listing period 'to any party with whom the said broker negotiated and whose name was disclosed to the owner by the broker during the listing period.'
During the listing period, plaintiffs presented to the owners a written offer from a Mr. and Mrs. Leatherman to purchase a portion of the property for $16,000. The owners rejected the offer. During the extension time following the listing period, the owners themselves sold the entire five lots to the Leathermans for the $40,000 list price. The plaintiffs demanded their commission based on the total sale price, were refused, and this lawsuit resulted. After trial to the court, judgment was entered for the plaintiffs for a 7% Commission on $16,000 only.
Signed copies of the listing contract, identical except that one copy called for 7% And the other for 10% Commission, were admitted into evidence. On this conflicting evidence, the court found that the agreed commission was 7%, instead of the 10% Sought by plaintiffs. That finding of fact is binding on this court on review. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453.
The remaining issue on this appeal is whether the plaintiffs are entitled to a commission on the sale price of the entire tract, or whether, as determined by the trial court, they are entitled to commission only on the $16,000 portion covered by the original offer.
The only evidence on this issue consisted of (1) the listing contract, (2) a stipulation that the plaintiffs had negotiated with the Leathermans 'for the purchase of the property,' (3) the rejected written offer from the Leathermans to buy a portion of the property, and (4) the admission that the Leathermans within the prescribed time period purchased all five lots directly from the owners for $40,000. From this, the court determined that the plaintiffs had negotiated with the Leathermans, but only on the sale of the one tract and not the entire property. It concluded that they were entitled to a commission only on the sale price of that tract. This being a legal conclusion and not a finding of fact, we are not bound by the trial court determination and may resolve the matter upon review. Helmericks v. Hotter, 30 Colo.App. 242, 492 P.2d 85.
To be entitled to a commission under an extension clause such as present here, it is not necessary for the broker to show that he was the 'procuring cause' of the sale. It is sufficient for the broker to establish that his activities and efforts met the requirement that he 'negotiated' with the parties who eventually purchased the property within the extension period. Galbraith v. Johnston, 92 Ariz. 77, 373 P.2d 587; Delbon v. Brazil, 134 Cal.App.2d 461, 285 P.2d 710; Fischer v. Patterson, 97 N.H. 318, 86 A.2d 851. It is not essential for him to have negotiated for the entire parcel. See Minks v. Clark, 70 Colo. 323, 201 P. 45. The written offer to purchase shows conclusively that the brokers here 'negotiated' with the ultimate purchasers. Englemann v. Auderer, 10 La.App. 136, 121 So. 194; Ohlendorf v. Shaw, 260 Md. 665, 273 A.2d 181; Mills v. Hunter, 103 Cal.App.2d 352, 229 P.2d 456. Since the sale of the entire property was within the extension period following the listing term to parties with whom the plaintiffs negotiated and whose names were disclosed to the owners, the plaintiffs are, by the contract, entitled to commission on the entire $40,000 sale price.
The cause is remanded to the district court with directions to set aside the previous judgment and to enter a new judgment for plaintiffs in the amount of $2,800, plus costs. Of this new judgment, $1,120 shall bear statutory interest from January 31, 1974.
RULAND and STERNBERG, JJ., concur.