Wilson v. Ross Investment Company

Mr. Justice Hays

dissenting.

I dissent from the majority opinion for the reason that it is predicated, in my opinion, upon a cause of action in the complaint which has been abandoned, and not upon the one upon which the case was submitted to the jury.

There were two causes of action in the complaint: one based upon contract and the other upon quantum *263 meruit. At the close of all of the evidence, plaintiffs, pursuant to an order of the court, elected to stand upon quantum meruit, and thereby abandoned the cause based upon contract.

In the majority opinion the author states: “This case, therefore, presents a clear-cut issue of whether the unexpected condemnation by the government of some of the property, which had been the subject of negotiation between brokers and landowner for alleged sale to the government, operates as a sale so as to entitle the brokers to a commission when the land so taken in condemnation varies in both price and acreage from the provisions of written option contracts previously executed by the landowner at the instance of the brokers.”

I am unable to agree with the above statement of the issues of this case. It is wholly immaterial in my view whether “condemnation by the government * * * operates as a sale” or that “the land so taken in condemnation varies in both price and acreage from the provisions of the written option contracts.” The sole and only issue in the case is whether or not the plaintiffs rendered services as brokers and agents to the defendant at her request, and if so, the value of such services. I think Instruction No. 1, given by the trial court, is a correct statement of the issues in the case. It reads as follows:

“Plaintiffs claim that at the request of the defendant they performed services for her as real estate brokers and agents which were worth the sum of $7575.00, all of which has not been paid.

“Defendant denies that she employed the plaintiffs or that they rendered any services for her at her request; and also further denies that she owes them anything.

“These are the issues you are called upon to determine.”

The trial court further instructed the jury:

“You are instructed that if you believe from a preponderance of the evidence herein that plaintiffs at the request of defendant performed services for her as real *264 estate brokers and agents, then you are to return a verdict for plaintiffs and against defendant in such sum as you believe that the said services were reasonably worth, but not to exceed $7575.00.

“On the other hand, if you find by a preponderance of the evidence that the plaintiffs as real estate agents at the request of the defendant rendered no services for her as such, then you should return a verdict for the defendant.”

The majority opinion does not conform to the above statement of issues, and the theory upon which the case was tried, but on the contrary the author assumes, as I interpret the opinion, that the case was tried upon the contract cause of action of the complaint. This interpretation is further fortified by the following excerpts from the opinion:

“This case involves a commission for the sale of real estate.”

“* * * Plaintiffs do not claim that they fulfilled any or all of the option contracts.”

“There is no indication from Mr. Hackstaff s testimony that the landowner agreed to sell her property under any arrangement other than that contained in the written options, which he had obtained from her over a month’s period of negotiations.”

“Mr. Conway in his testimony, admitted that the landowner had made no agreements other than those contained in the four written options.”

“The instant case shows no contract between a purchaser and seller for an agreed compensation.”

“The instant case shows no contract between a purchaser and seller for an agreed compensation. The compensation in the instant case had not been fixed by previous agreement, nor had the amount of the property taken been agreed upon. Both of these factors were determined in the condemnation suit itself.”

“By this we do not mean to say that the federal government could not have been a purchaser.”

*265 “There could have been that meeting of the minds that is necessary in every contract. * * * A suit on a contract is one in personam, but an appropriation of private property for a public use is generally viewed as a proceeding in rem.”

“We conclude, therefore, that the express option contracts have not been performed by the condemnation proceedings.”

In my judgment the above excerpts from the majority opinion are wholly inconsistent with an action on quantum meruit, but are consistent with the abandoned cause of action on a contract. The defendant accepted the services of the plaintiffs from day to day and apparently was well satisfied with what they were doing in an effort to have the government select her property for the arms plant. She discharged them when she reached a point in the negotiations where she felt that their services were no longer needed. “Under such circumstances we have held the law implies a promise on the part of the employer to pay the employee for the reasonable value of his services in the light of benefits conferred.” Milner v. Ruthven, 116 Colo. 22 , 178 P. (2d) 417 .

In my opinion the trial court properly instructed the jury on quantum meruit, and the verdict of the jury, which is based upon abundant evidence, should be affirmed.