Crampton v. Irwin

203 P. 672, 71 Colo. 1, 1922 Colo. LEXIS 314

• Court: Supreme Court of Colorado
• Decided: January 9, 1922
• Docket: No. 9977
• Status: Published

Opinion

Mr. Justice Allen

delivered the opinion of the court.

This is an action to recover a real estate broker’s commission. The'cause was tried to the court without a jury. Judgment was for plaintiff, and defendant brings error.

The plaintiff in error, defendant below, asserts in his brief as follows:

“The complaint nowhere alleges that the prospective purchaser wás ready, able and willing to purchase, and the testimony introduced entirely omits all proof on the question of the ability of the prospective purchaser to purchase.”

We have read the abstract, and it sustains the foregoing proposition. The instant case is controlled by the rule stated in Colburn v. Seymour, 32 Colo. 430, 76 Pac. 1058, 2 Ann. Cas. 182, as follows:

“* * * When a sale does not actually take place, * * * he (the broker) cannot recover commissions unless he shows that he procured and produced to his principal a person ready, willing and able to purchase the property upon the terms and conditions under which he was authorized to negotiate a sale.”

The foregoing rule was applied in Fox v. Denargo Land Co., 37 Colo. 203, 86 Pac. 344, where recovery was denied because the proof failed “to establish the financial ability” of the prospective purchaser to comply with the terms of the proposed contract.

There are no allegations in the complaint, nor is there any showing in the evidence, rendering unnecessary the proof of the financial ability of the prospective purchaser. The rule above stated therefore controls. See also Wagner v. Norris, 39 Colo. 106, 88 Pac. 973; 9 C. J. 595.

The judgment is reversed, and the cause remanded with directions to dismiss the action.

Mr. Justice Teller, sitting for Mr. Chief Justice Scott, and Mr. Justice Denison concur.