Opinion
Dec. 12, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 366
Williams, Trine & Greenstein, Charles E. Williams, David Griffith, Boulder, for plaintiffs-appellants.
Doty, Johnson & Summers, Bruce R. Johnson, H. McGregor Doty, II, Boulder, for defendants-appellees.
COYTE, Judge.
Plaintiffs, real estate brokers, brought this action to recover a real estate commission from the defendants, Richard Affolter and Kyle Lorenzen.
An agent for the plaintiffs was contacted by a party who desired to purchase income-producing property. Plaintiff's agent then contacted defendant Affolter regarding the sale of a building that Affolter and Lorenzen were constructing. Thereafter, Affolter came to plaintiffs' office and indicated that he was interested in selling but that, before he could state a price and terms, he would have to know what the real estate commission would be. Upon being advised of the amount of the commission, he specified the price and terms upon which the property could be sold.
Thereafter, an attorney who was assisting the prospective purchaser at the request of plaintiffs, prepared an exclusive listing contract, which defendant refused to sign stating that he would not sign a general exclusive listing, but that he would sign an agreement which would protect plaintiffs in the event the sale to plaintiffs' prospect was completed. Thereafter, the attorney retained by the prospect prepared a contract for the purchase and sale of the property which, after consultation with plaintiffs, provided that upon the execution of the agreement defendants would be bound to pay a real estate commission to plaintiffs upon the closing of the transaction.
Plaintiffs' agent, who was the only person from plaintiffs' office to discuss the payment of a commission with defendants, testified that the commission would be due when the property was sold or when the sale when through.
When the parties got together to sign the contract, defendants refused to sign and all dealings between the parties ceased. Plaintiffs then filed this action against defendants for a real estate commission. Plaintiffs claim their right to a commission on the ground that they produced a purchaser ready, able and willing to buy and that defendants refused to sell under the agreed terms.
On motion by defendants at the conclusion of plaintiffs' case, which was being tried to a jury, the court dismissed plaintiffs' complaint. In so ruling the court stated:
'If the written agreement tendered to defendants had been signed by them, it would have expressly created the liability by virtue of the act of entering into the agreement.'
We agree with the decision of the trial court and affirm its ruling. It is the rule in Colorado that a motion for directed verdict is properly granted where the plaintiffs have failed to establish a claim as a matter of law. In passing on such a motion the trial court must view the evidence in the light most favorable to the plaintiffs. Stated in another manner, the rule is that a directed verdict for defendants would be proper where the evidence is such that if a verdict had been rendered for the plaintiffs it would have been the court's duty to set the verdict saide. McSpadden v. Minick, 159 Colo. 556, 413 P.2d 463; Nelson v. Centennial Casualty Co., 130 Colo. 66, 273 P.2d 121; Hartwell v. Minneapolis-Moline Power Implement Co., 117 Colo. 291, 186 P.2d 228.
The burden of proof is upon the party who asserts the affirmative of an issue. Normally, this is by a preponderance of the evidence. However, as here, where a broker is seeking recovery of a commission, the burden must be sustained by 'clear and convincing evidence.' Johns v. Ambrose-Williams & Co., 136 Colo. 390, 317 P.2d 897. (This is the rule of law that was in effect prior to July 1, 1971. See 1971 Perm.Supp., C.R.S.1963, 52--1--28.)
Considering the evidence in the light most favorable to plaintiffs, plaintiffs failed to establish the existence of a contract between plaintiffs and defendants that plaintiffs were to be compensated if a ready, willing and able buyer were produced, as alleged in their complaint. The evidence did establish an agreement that defendants would become obligated for a commission if and when a contract was entered into with the prospective purchaser. However, the contract of sale was never executed and thus plaintiffs never became entitled to a commission.
A broker's right to a commission depends on the particular agreement between the parties. Watson v. United Farm Agency, 165 Colo. 439, 439 P.2d 738; Scott v. Huntzinger, 148 Colo. 225, 365 P.2d 692. This is not the usual broker commission case wherein the broker, without a specific understanding between the parties, obtains the right to sell the property and produces a buyer who is ready, willing and able to purchase on the terms proposed by the seller. Here the agreement provided that plaintiffs would be entitled to a commission only if the property were sold to plaintiffs' purchaser. It was not sold to plaintiffs' purchaser. Therefore, the obligation to pay a commission did not arise.
Judgment affirmed.
SILVERSTEIN, C.J., and PIERCE, JJ., concur.