Opinion
July 22, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
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R. T. Thomas, Colorado Springs, for plaintiffs-appellees and cross-appellants.
Philip M. Kleinsmith, Colorado Springs, for defendants-appellants and cross-appellees.
SILVERSTEIN, Chief Judge.
Defendants appeal from a judgment awarding plaintiffs a judgment for real estate broker's commissions against all defendants except Leland and Talbot. Plaintiffs cross-appeal, claiming they are entitled to a larger amount. We affirm the judgment.
The commissions claimed are based on services performed by plaintiff Jack Roseberry, a licensed real estate salesman. Defendant Allred was the managing partner of a general partnership known first as Tooth, Ltd., and later as Benchmark Associates. In mid-1969, Roseberry and Allred, on behalf of the partnership, agreed that Roseberry would devote part of his time in bringing to the partnership real estate ventures with development potential. On any ventures in which the partnership acquired an interest, Roseberry was to be paid a commission in an amount to be negotiated by the parties or, at the option of the partnership, an interest in that particular venture.
I.
Plaintiffs claim a commission, under the agreement, for producing a venture known as Academy Associates in which the partnership acquired a fifty percent interest. Defendants deny liability for this commission on the grounds that the contract is unenforceable because of indefiniteness and lack of mutuality, and that Roseberry was not the efficient cause of the transaction.
As to the first ground, defendants rely principally on the fact that the contract did not state how compensation was to be determined. However, where an employment contract contains no agreement as to the amount of compensation, the law implies a promise to pay a reasonable amount. Millspaugh v. McKnab, 134 Kan. 579, 7 P.2d 51; See Allred v. Lininger, 156 Colo. 341, 398 P.2d 967. Further, the record shows that Roseberry produced two other ventures for which he was given a percentage, as compensation under the contract.
As to the second defense, the testimony of Allred established that Roseberry was entitled to a commission if he presented the venture, which was later closed, and that he was not required to continue in the negotiations. The evidence clearly supports the trial court's finding that Roseberry 'did in fact initiate the original contract' which resulted in the completed transaction. Hence, under the contract here Roseberry was entitled to a commission. See Consolidated Oil & Gas, Inc. v. Roberts, 162 Colo. 149, 425 P.2d 282.
II.
Plaintiffs also claim a commission on a venture, referred to as the Nottingham transaction, which was entered into by the partnership in 1972. Defendants deny liability on this claim on the ground that on January 1, 1972, their agreement with Roseberry was amended by placing him on a salary which was to be his entire compensation for his working full time for the partnership.
The evidence on this issue was in conflict. However, since there is ample evidence to support the trial court's findings, we will accept them on review. Broncucia v. McGee, 173 Colo. 22, 475 P.2d 336. These findings establish that the monthly payments made to Roseberry were a draw against commissions to be earned and that Roseberry, although devoting most of his time to the partnership, was at liberty to work on other matters. Further, based on various understood and agreed factors, Roseberry was to continue to receive a negotiated commission on each venture.
Also, the trial court's finding that Roseberry initiated the original contact which resulted in the partnership's acquiring an interest in the Nottingham property, being supported by the record, disposes of defendant's further contention that Roseberry was not the efficient cause of the Nottingham deal.
III.
As a defense to both commissions claimed by plaintiffs, defendants assert that the claims are illegal because Roseberry was acting in violation of s 12--61--117, C.R.S.1973, which provides that a salesman can accept consideration only from his employer, who must be a real estate broker. The record shows, however, that at all times pertinent to this action Roseberry's employer was plaintiff J. O. Carmichael, a licensed broker, who testified that he knew of, and consented to, Roseberry's work in attempting to find land for defendants, that he had been informed of the transactions involved in this appeal, and that he was entitled to a percentage of the claimed commissions. Although the evidence is conflicting, the record supports the trial court's conclusion that defendants had failed to carry the burden of proving their affirmative defense of illegality. See Richards v. W. T. Rawleigh Co., 74 Colo. 463, 222 P. 650.
IV.
Plaintiffs, in their cross-appeal, contend that the trial court erred in awarding 'reasonable' compensation, and that if reasonable compensation were proper, ten per cent of the purchase price would be the proper reasonable compensation, since there was evidence that this was the customary commission rate in the area. This amount would be considerably larger than the sum awarded.
In the absence of an agreement as to the amount of compensation, generally a broker employed in a real estate transaction is entitled to the usual rate of commission paid for such services. Burgess v. Cole, 69 Colo. 341, 164 P. 611. However, here there was an express agreement as to the factors upon which the compensation is to be determined including, among others, whether Roseberry initiated the deal, the degree of his participation in the negotiations, and his role in bringing the transaction to fruition. The trial court properly based its conclusion as to reasonable compensation on the evidence delineating those factors contained in the agreement.
In fixing the amount of damages, the trial court is vested with a wide discretion, and its award will not be set aside unless 'grossly and manifestly inadequate' or unless it indicates that the court neglected to consider pertinent elements or was influenced by prejudice or other extraneous considerations. See Preuss v. Schoonover, 154 Colo. 531, 391 P.2d 880. No abuse of that discretion is apparent here.
Plaintiffs' further contention that the court did not determine the case on the theories framed by the pleadings is also without merit. The findings and conclusions of the trial court demonstrate that it properly granted appropriate relief pursuant to the evidence presented. Continental Sales Corp. v. Stookesberry, 170 Colo. 16, 459 P.2d 566; Apex Investments, Inc. v. Peoples Bank, 163 Colo. 325, 430 P.2d 613. We have considered the other contentions raised by the parties and find them to be without merit.
Judgment affirmed.
COYTE and PIERCE, JJ., concur.