Summary
In Bamford, Wayne Bamford brought suit against Wiley Cope and Jack Richardson to recover a commission for obtaining a loan to refinance the defendants' ranch.
Summary of this case from Moeller v. Colorado Real EstateOpinion
No. 71-009
Decided July 18, 1972.
Action for broker's commission alleged to be due under oral contract between partners in ranch operation and mortgage finance broker. From judgment for broker of 1% of amount of ranch refinancing loan received by the partners, one partner appealed.
Affirmed
1. BROKERS — Real Estate — Licensing Statute — Not Preclude — Arranging Loan — Secured — Deed of Trust — Real Property. Statute which makes it unlawful for one to engage in the business of real estate broker or salesman without first having obtained appropriate license does not preclude mortgage finance broker from recovering fee due him as result of his arranging for a loan which loan is secured by a deed of trust on real property.
2. Contingent Fee — Succeeded — Arranging Loan — Entitled to Fee — Regardless — Time Spent. Where mortgage finance broker succeeded in arranging loan pursuant to contract which provided that his fee was to be contingent upon his obtaining that result, broker is entitled to receive the fee agreed upon regardless of the fact that he spent only a few hours in performing his services.
3. VENUE — Complaint Alleged — Contract Entered — Fee to Be Paid — Denver — — Venue Proper. Where complaint alleged that contract between parties was entered into, and that payment of fee to plaintiff was to be made, in Denver, under the rules, the action was properly tried in Denver.
4. PRACTICE AND PROCEDURE — Amended Caption — Proper — After Trial — Partnership Admitted — At Trial. After trial of the action, trial court properly granted plaintiff's motion to amend complaint caption to reflect partnership relationship of defendants, that relationship having been admitted by one defendant during the trial.
Appeal from the District Court of the City and County of Denver, Honorable Saul Pinchick, Judge.
Kokish, Garner, Bender Wood, John Kokish, for plaintiff-appellee.
Koeberle Brenker, Theodore P. Koeberle, for defendant-appellant.
Plaintiff Bamford brought this action to recover a commission alleged to be due him under an oral contract entered into with the defendant Cope. He alleged that Cope and defendant Richardson were partners, and that the contract was entered into by Cope with full knowledge and authority of Richardson. Under the contract, Bamford, as a mortgage finance broker, was to aid in obtaining a loan to refinance the Three Rivers Ranch in Jackson County, Colorado, owned by the defendants. For these services he was to receive a commission of one percent of the amount of the loan. The complaint further alleged that an $840,000 loan was obtained as a result of Bamford's efforts, and prayed for judgment of $8,400.
Defendants admitted receiving the loan and denied all the other allegations of the complaint. Their answer affirmatively asserted that Bamford had waived, or was estopped from asserting, his right to a commission.
After a trial to the court, judgment was entered in favor of Bamford against both defendants in the amount prayed for. Defendant Richardson, alone, appeals from that judgment. We affirm.
Richardson asserts four grounds for reversal: First, that the judgment is not supported by the evidence in that the evidence failed to show any contract for compensable services, or to show that plaintiff's efforts were the efficient cause of obtaining the loan, or to show that the agreement by Cope was authorized by the partnership; second, that plaintiff was barred from recovery because he had no real estate broker's license; third, that the commission charged was unconscionable in the light of services performed; and fourth, that the court erred in denying a motion for change of venue, in permitting an amendment to the caption of the complaint, and in failing to make adequate findings of fact and conclusions of law.
I.
Cope failed to attend the trial although he was represented by counsel. Bamford testified as to the circumstances under which he and Cope entered into the contract, and to the terms of the agreement. This testimony was undisputed. Bamford also testified as to the acts performed by him in contacting the agent of the insurance company which made the loan. This testimony was corroborated by the insurance company agent. This evidence was also uncontroverted.
Richardson admitted that he and Cope were partners and did not deny that Cope had authority to act for the partnership. He testified, however, that he had been in contact with another agent of the insurance company and claimed that it was through this contact that the loan was obtained.
The trial court found that a contract had been entered into between Bamford and Cope, that Cope had agreed to a commission of one percent of the amount of the loan, that Bamford had performed the services required under the contract, that these services initiated the procedure which resulted in the loan's being made, that Cope had the apparent authority to make the contract and that his actions were binding on Cope's partner, Richardson. The court further found that the loan resulted from Bamford's efforts, and not from Richardson's contact with the other agent. The court concluded that Bamford was entitled to judgment in accordance with the terms of the contract.
The findings of the trial court are all supported by the evidence and will not be disturbed. Coon v. Guido, 170 Colo. 125, 459 P.2d 282.
II.
[1] Richardson's claim that Bamford is not entitled to recover because he did not have a real estate broker's license is without merit. The statute then in effect, C.R.S. 1963, 117-1-1, made it unlawful to engage in the business of real estate broker or salesman without having first obtained a license from the secretary of state. 1965 Perm. Supp., C.R.S. 1963, 117-1-2, defines a real estate broker as one who, in consideration of compensation performs any of the following acts, inter alia, "Selling, exchanging, buying, renting, or leasing real estate, or interest therein, or improvements affixed thereon; . . . ."
Richardson contends that arranging for a loan which is secured by a deed of trust on real property involves a transaction which is an exchange of "an interest" in real estate. We do not agree. The placing of a lien against the property does not constitute a sale or exchange, as those terms are used in the above statute. Our Supreme Court has held that the provisions of the real estate broker's licensing statute are not to be extended by implication. Cary v. Borden Co., 153 Colo. 344, 386 P.2d 585.
The fact that many real estate brokers perform services similar to those performed here, does not mean that only licensed real estate brokers can perform such services.
III.
Richardson claims that the fee was unreasonable in the light of the few hours time spent by Bamford in performing his services. A qualified witness testified that a fee of one percent was a reasonable fee for this type and size of loan. This testimony was unrefuted. In addition the contract provided for the fee allowed.
[2] Where, as here, the fee is contingent upon the result achieved, the broker is entitled to receive the fee agreed upon regardless of the amount of time spent. See Consolidated Oil and Gas, Inc. v. Roberts, 162 Colo. 149, 425 P.2d 282. The trial court did not err in awarding the fee agreed upon.
IV.
[3] Denial of the motion for change of venue was not error. The complaint alleged that the contract was entered into, and that payment of the fee was to be made, in Denver. Under C.R.C.P. 98(c) the action was properly tried in Denver.
[4] As originally filed the caption of the complaint listed Cope and Richardson as defendants. The complaint alleged the two defendants were partners. Prior to trial, plaintiff moved to amend the caption so that the defendants would read, "Wiley Cope and Jack D. Richardson, individually and d/b/a Three Rivers Ranch, a partnership." After the trial, in which Richardson admitted the partnership, the court granted the amendment. This action was proper. C.R.C.P. 15(b).
The findings of fact and conclusions of law announced from the bench fully complied with C.R.C.P. 52(a).
Judgment affirmed.
JUDGE DWYER and JUDGE ENOCH concur.