Opinion
Rehearing Denied Feb. 25, 1975.
Page 331
Moore, Francis & Van Domelen, P.C., Robert A. Francis, Aspen, for plaintiff-appellant.
Stephen A. Ware, Kenneth A. Senn, Aspen, for defendant-appellee.
KELLY, Judge.
Plaintiff Throm appeals from a judgment in favor of defendant Reid entered after trial to the court of Throm's action to recover his real estate broker's commission. We affirm.
The trial court's findings were, in substance, that in August 1972, Reid gave Throm an exclusive listing for the sale of Reid's condominium in Snowmass at an agreed commission of six per cent of the selling price, 'Terms: Cash'. A few weeks later, Throm telephoned Reid, who lived in Minnesota, to convey an offer at somewhat less than the listed price, and indicated that the purchaser would have to obtain financing. Reid agreed to the reduced price, but instructed Throm to forward the receipt and option contract so that he could look over the terms.
The following day, Reid changed his mind about the price and wrote to Throm, saying he wanted more for the condominium. The receipt and option contract, which Throm had prepared and sent to Reid, provided:
'(P)urchaser agrees to buy upon the following terms and conditions, for the purchase price of $22,750.00 payable as follows: $500.00 hereby receipted for, $22,250.00 payable at closing in the form of cash or a Certified Check, of this amount $18,200.00 shall be represented by Mortgage to be obtained by the Buyer at an interest rate not to exceed 8 1/2% For a period not less than 30 years and no more than a 2% Financing fee.'
Reid did not sign this contract.
From these findings, which are supported by the evidence, the trial court concluded that the provisions of the receipt and option contract were conditional, did not comply with the terms of the listing agreement, and that therefore Throm had not produced a purchaser ready, willing and able to buy. We agree.
On review, evidence must be viewed in the light most favorable to the prevailing party in the trial court, and the judgment of the trier of facts will not be disturbed if it is based on competent evidence in the record. Gleason v. Phillips, 172 Colo. 66, 470 P.2d 46. In this case, the trial court's findings of fact and conclusions of law are supported by evidence, and we are bound by its determination even though it would be possible for reasonable men to arrive at a different conclusion based on the same facts. American National Bank v. Etter, 28 Colo.App. 511, 476 P.2d 287.
Whenever possible, a contract must be construed to give full effect to all of its provisions, Aronoff v. Western Federal Savings & Loan Ass'n., 28 Colo.App. 151, 470 P.2d 889, and if it is necessary to do so, the court may consider surrounding facts and circumstances. See National Sales Corp. v. Dennis, 93 Colo. 536, 27 P.2d 499.
Here, the trial court, after considering the language of the receipt and option contract and Throm's statements to Reid that the proposed purchasers would have to obtain financing, found that the receipt and option contract was conditional. Under these circumstances, the trial court properly concluded that the receipt and option contract did not comply with the cash requirements of the listing agreement. Since a broker's right to a commission depends on the terms of the listing agreement, See Watson v. United Farm Agency, Inc., 165 Colo. 439, 439 P.2d 738, the trial court's conclusion that Throm had failed to produce a purchaser ready, willing and able to buy on the terms stated in the listing agreement was correct.
We have considered appellant's other arguments and find them to be without merit. The judgment is therefore affirmed.
SILVERSTEIN, C.J., and BERMAN, J., concur.