Opinion
July 2, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
B. J. O'Leary, Colorado Springs, for plaintiff-appellant.
Witty & Florey, Mack Witty, Salida, for defendants-appellees.
SILVERSTEIN, Chief Judge.
Defendants owned a fishing resort in Saguache County which they sold in 1971 to J. C. Rapp, buyer. Plaintiff Strabala claims he had an implied contract with defendants to act as their broker in the sale. Defendants deny that they had any business dealings with plaintiff.
Defendant Harold Koster acted for the defendant corporation throughout the transaction involved herein. In 1967 Harold Koster agreed to pay T. R. Schubert, a real estate salesman, a commission if he could find a buyer. This oral agreement was in effect at the time of the sale.
From 1967 until the summer of 1971, Schubert had shown the property to only two prospective buyers. Plaintiff first met Koster when in late May 1971 Schubert took plaintiff and a client of plaintiff's to see the property. A discussion was held relative to terms of sale, and, on June 4, 1971, a written offer to purchase was tendered to Koster, who rejected the offer. The tendered contract stated that the earnest money deposit would be held by Walker & Co., the real estate broker by whom Schubert was employed. In July, although he had no listing, plaintiff showed his attorney and another man around the property.
In August 1971, E. T. O'Boyle, a salesman employed by plaintiff, interested Rapp, a long-time friend, in the property, and asked Schubert to call Koster for permission to go to the resort. Schubert phoned Koster and obtained the permission. On August 27, 1971, Mr. and Mrs. Rapp, Mr. O'Boyle, and Mr. Frederick, the man who had made the June offer, drove up to the property. Mr. Frederick was taken along because O'Boyle didn't know how to get to the resort. At this time O'Boyle admittedly had no listing on the property, had never seen the property, had never met Koster, and knew nothing about the terms under which the property was offered. The parties stayed at the resort for about five hours, but a sale of the property was not discussed.
On August 29, Mr. Rapp, with the acquiescence of O'Boyle, returned to the property, discussed with Koster the purchase of the property, and reached a tentative agreement with him. On September 1, Rapp and Koster signed a contract for the purchase and sale of the property, which agreement called for a $10,000 down payment. On September 3, Rapp mailed his check for this amount to Koster, who received it on September fifth or sixth. Both Rapp and Koster testified they considered themselves bound on September 1 by their signed contract. On September 2, Schubert's salesman's license was transferred from Walker & Co. to plaintiff, as his employer.
The evidence was in conflict as to whether Schubert told Koster that Rapp was coming to the resort to fish or as a propective purchaser; as to whether O'Boyle told Koster he was a real estate salesman; and as to whether O'Boyle told Rapp that O'Boyle did not have a listing on the property. The trial court found that defendants' evidence was more satisfying, and held that, under the circumstances, no contract could be implied between the seller and the broker. We agree.
Plaintiff contends that the evidence established an implied contract between himself and defendants and that the trial court failed to give proper weight to the testimony of all the witnesses. However, the trial court's findings are supported by substantial evidence and are binding on review. Fletcher v. Garrett, 167 Colo. 60, 445 P.2d 401.
Plaintiff asserts that O'Boyle and Schubert were his agents in the transaction. However at the time the contract was signed, and prior thereto, Schubert was an employee of Walker & Co. Had Schubert's efforts warranted a commission, the commission would have been payable to his then employer, Walker & Co. See C.R.S.1963, 117--1--11. Therefore plaintiff cannot rely on Schubert's actions or agreement with Koster to establish his claimed broker-seller relationship.
As to O'Boyle, neither he nor plaintiff had any contract with Koster at the time O'Boyle took Rapp to the resort to meet Koster. Under these circumstances the mere introduction of the parties to each other does not warrant the paying of a commission. Heady v. Tomlinson, 134 Colo. 33, 299 P.2d 120. See Pyles v. Colorado Land & Investment Co., 144 Colo. 197, 355 P.2d 953.
In Fletcher v. Garrett, Supre, relied on by plaintiff, it was held that the circumstances established an implied brokerage contract. In that case, however, the salesmen were identified as such when they brought their prospective buyer to meet the seller. Additionally, the salesmen, the buyer, and the seller all discussed the sales price, the terms of the sale, and the commission. In the instant case, O'Boyle testified that there was no mention of a possible sale at the August 27th meeting and that price and other terms were definitely not discussed. Also the trial court found that O'Boyle had not disclosed that he was a salesman. Under these circumstances there were no facts from which a contract could be implied.
Judgment affirmed.
COYTE and SMITH, JJ., concur.