Opinion
Van Cise, Freeman, Tooley & McClearn, Edwin P. Van Cise, Denver, for plaintiffs in error.
Bromberg & Bromberg, William L. Bromberg, Denver, for defendant in error.
DWYER, Judge.
This case was transferred from the Supreme Court pursuant to statute.
Plaintiff Minissale Realty, Inc., brought this action against the defendants James Warren Andrews and Nancy B. Andrews to recover a broker's commission allegedly due under a listing agreement.
The court tried the case without a jury and entered judgment in favor of plaintiff on the basis of the facts stipulated by the parties. Defendants, appearing here as plaintiffs in error, seek reversal.
Defendants owned a parcel of land in Denver. A building located on this property was destroyed by a fire on February 6, 1967. The next day the defendants were contacted by an oil company which was interested in leasing the property as a service station site. The oil company and the defendants commenced negotiations. The defendants demanded a minimum monthly rental in an amount sufficient to meet their obligations on a promissory note secured by a deed of trust on the property. The oil Company was unwilling to pay a minimum rental and offered to pay a rental computed on the basis of the number of gallons of gasoline sold at the station. The oil company and the defendants were unable to agree upon terms and their negotiations terminated on June 16, 1967.
Thereafter, on June 20, 1967, plaintiff and defendants entered into an exclusive listing agreement to sell the property. The parties renewed the listing agreement on three separate occasions, and during this time plaintiff attempted to sell the property. Plaintiff also attempted to lease the property to the oil company which had originally negotiated with the defendants, but was unsuccessful because neither the defendants nor the oil company would yield in their respective positions on rental terms. The final listing agreement expired on or about April 11, 1968, and plaintiff abandoned all negotiations with the oil company at that time.
Thereafter, defendants again negotiated directly with the oil company. On June 13, 1968, a lease was finally executed when the oil company arranged to refinance defendants' promissory note. The oil company agreed to purchase the outstanding note and defendants executed a new note payable to the oil company. Payments of interest and principal were to be made out of rentals computed on a gallonage formula and the oil company agreed not to foreclose during the term of the lease. The unpaid balance of principal and interest was to fall due at the end of the lease term.
The listing agreement upon which this action is based was prepared by plaintiff on a standard form printed by a Denver publisher of blank legal forms. It is captioned 'Exclusive Listing and Right to Sell,' and provides in pertinent as follows:
'* * * I hereby list with said broker, for a period of 30 days from date hereof, the property described below, and I hereby grant said broker the exclusive and irrevocable right to sell the same within said time at the price and on the terms herein stated, or at such other price and terms which may be accepted by me, and to accept deposits thereon and retain same until the closing of, or defeat of, the transaction. I hereby agree to pay said broker 6% Of the selling price for his services (1) in case of any sale or exchange of same within that time, either by the undersigned owner, the said broker, or by any person, or (2) in case of any such sale or exchange of same within the 90 days subsequent to the expiration of this agreement to any party with whom the said broker negotiated and whose name was disclosed to the owner by the broker during the listing period.
'1001 West Alameda Ave., Denver, Colorado
'Legal Description Attached
'Price $87,500.00 Terms Cash, terms or trade to be considered, also lease to be considered.'
The lease was executed after the expiration of the 'primary' listing, but within 90 days thereafter, and plaintiff contends that by the express terms of the listing agreement it was entitled to a commission. The following statement from Scott v. Huntzinger, 148 Colo. 225, 365 P.2d 692, is applicable:
'The present action is based on an express contract, not on quantum meruit. See Millage v. Irwin, 68 Colo. 188, 187 P. 525. Such being the case, though perhaps it be a truism, it is nonetheless still quite proper and correct to observe at the outset that the right of a broker to recover a commission depends upon the particular terms of the broker's employment. See McGill v. Fleming, 32 Cal.App.2d 601, 90 P.2d 341.'
The contract, by express provision, required the defendants to pay a commission in case of any sale of exchange of the property within 90 days subsequent to the expiration of the primary listing period. There is nothing in this provision of the contract which requires payment of a commission in the event the defendants leased the property during this period, nor is there anything in the stipulation of facts which would establish that the parties intended that any commission would be due in such event.
Under the stipulated facts the defendants here did not circumvent the broker in an attempt to escape payment of a commission and the case of Brewer v. Williams, 147 Colo. 146, 362 P.2d 1033, relied upon by the plaintiff is not in point; nor is the plaintiff entitled to a commission on a theory of quantum meruit since, under the stipulated facts, the broker was not the procuring cause of the lease.
Judgment reversed with directions to dismiss plaintiff's action with prejudice.
COYTE and PIERCE, JJ., concur.