Haefeli v. Ahlstrand

Me. Justice Bakke delivered the opinion of the court. This is an action by plaintiff in error against defendants in error to recover damages in the sum of $825, and for body judgment. On trial of the issues before a jury, judgment of nonsuit was entered against the plaintiff at the close of his case, on motion of the defendants. Several assignments of error are made, but, for the purpose of this opinion, it is only necessary to consider the one based on the sufficiency of the evidence and the one on the refusal of the trial court after the close of the plaintiff’s case to permit an amendment of the plaintiff’s complaint to conform to the evidence. The parties will be referred to as they were in the trial court. Plaintiff, an optometrist, dabbled in real estate as a hobby, and had been engaged in various real estate dealings over a period of years with defendant Hood to their mutual advantage: The defendants, both of whom were real estate brokers in the city of Greeley, used the office of defendant Ahlstrand. Defendant Hood occupied space therein and he divided his commissions with Ahlstrand in payment of rent. The evidence discloses that both defendants were independent contractors, rather than mutual agents or partners. During the fall of 1933, one James Watson, being the owner of a ten acre tract in Greeley, listed it for sale with Ahlstrand for $1,875, subject to an encumbrance of $1,500. Subsequently said tract was one of several pieces of real estate which Ahlstrand had given to Hood to try and sell. Hood spoke to plaintiff on several occasions about buying it and plaintiff went out and looked at the tract. During the forenoon of March 7, 1934, Ahlstrand, at the request of defendant Hood and upon the payment by him of $50, secured an option from Watson for the purchase of the tract for $1,898, subject to the $1,500 [298] encumbrance, said option being in favor of “C. H. Hood or assigns. ’ ’ On March 12th, Hood sold the tract to Abe Winograd, and on March 13th, the option, which was secured by defendant Hood on March 7th, was exercised, and Watson conveyed the tract to Winograd who went into possession. During all of these negotiations the plaintiff had an equity in a residence property which he was anxious to dispose of, and Hood was also trying to sell this for the plaintiff. On the 16th of March, Hood, believing* that the plaintiff was still interested in buying the tract, went to him and said that he, Hood, had a compromise offer of $800 and that Winograd would take $200 cash and plaintiff’s note for $600, which proposition was accepted by plaintiff, he giving Hood a check for $200 and a note for $600. Plaintiff’s contention is that the defendants, cooperating together, conspired to defraud him by having Hood buy the tract from the original owner at a figure considerably less than that quoted to plaintiff, and that they used Winograd as a “straw” man, through whom they could convey title for the purpose of the sale to plaintiff. It is impossible to determine just what kind of an action the plaintiff is seeking to maintain. There seems to be a mixture of conspiracy, fraud and deceit, breach of contract, and breach of trust. The trial court finally determined that the action was one in fraud and deceit and dismissed it for failure of proof. Such determination was reached after hearing’ all of the testimony the plaintiff had to offer. There is no showing here that the trial court abused its discretion in not letting the case go to the jury, and its judgment, in the absence of such showing, will not be disturbed on review. It is clear from the evidence that there never was any meeting of the minds, as far as the plaintiff and defendant Hood were concerned, until the sale to plaintiff was consummated on March 16th, at which time he was specifically advised that Winograd was the owner. [299] Plaintiff relies with, considerable urgency on an alleged confession made by Hood to him in June, and the fact that he, Hood, cried while making this confession. This may have been the remorse of a man who indulged in sharp practice to take advantage of a friend of many years, but, under the circumstances in this case, it does not constitute a basis for cause of action. The maintenance of this alleged cause of action depended largely upon the legitimacy of the deal with Wino-grad. The failure of the plaintiff to invoke the testimony of Winograd can only be taken to mean that he must have been satisfied that there was nothing irregular about defendant Hood’s deal with Winograd. The evidence clearly discloses that on March 16th plaintiff knew that Hood was representing Winograd also, consequently we must assume he assented thereto, and he is not entitled to recover any commission or profit which Hood and Winograd may have made on their deal. Way v. Smith, 73 Colo. 348, 215 Pac. 868. Cases cited by plaintiff’s counsel do not assist him, because they are readily distinguishable on the facts from the present case. The court did not err in refusing to permit the amendment to the plaintiff’s complaint after the close of his case, because all of the plaintiff’s evidence was in and it was clearly insufficient to support a judgment in any amount for him. The record discloses that the evidence was insufficient to establish a cause of action under any of the supposed theories that the plaintiff may have had in mind, and a judgment of nonsuit was properly entered. 18 C. J. 1147, Goodstein v. Silver Plume Mines Co., 79 Colo. 269, 245 Pac. 714, and Elliott v. Parr, 100 Colo. 204, 66 P. (2d) 819. Judgment affirmed. Mr. Justice Bouck and Mr. Justice Young dissent.