Decided November 20, 1973.
Action alleging claims for tortious interference with contract for sale of real estate and for unjust enrichment. From judgment for defendant, plaintiff appealed.
1. TORTS — Interference with Contract — Plaintiff — Could Not Demand — Performance of Contract — Failed to Establish — Element of Tort. Under circumstances in which sellers of real property had no duty to convey the property to plaintiff until certain conditions had been performed, and plaintiff voluntarily terminated his contract without performing the acts necessary to place himself in a position to demand performance by the sellers, there was no breach of the contract on the part of the sellers; thus in regard to claim for alleged tortious interference with a contract for the purchase and sale of real estate, the plaintiff failed to establish a necessary element of the alleged tort, i.e., that the action of the defendant actually induced a breach of contract.
2. BROKERS — Real Estate Agent — Prohibited — Acting — More Than One Party — Full Disclosure — Found by Trial Court — No Violation — Fiduciary Duty. Although statute prohibits a real estate agent from acting for more than one party in a transaction without the knowledge of all parties thereto, the trial court specifically found that there was a full disclosure to all parties by defendant; thus, even assuming that a principal-agent relationship actually existed between plaintiff and defendant, there was no violation of any fiduciary duty by the defendant.
3. TRUSTS — Constructive — Necessary Factor — Fraud — Duress — Abuse of Confidence — Unconscionable Conduct — Trustee Gains Title. Necessary to most constructive trusts is the presence of fraud (active or constructive) or duress, or abuse of confidence by commission of a wrong, or some other means of unconscionable conduct or questionable means by which the trustee gains his title; thus, where record discloses no evidence of any such factors, a constructive trust is inappropriate.
Appeal from the District Court of the City and County of Denver, Honorable Henry E. Santo, Judge.
Bernard D. Morley, for plaintiff-appellant.
Edward B. Towey Mary Allen, Edward B. Towey, for defendant-appellee.
Plaintiff-appellant, Bryant Baker, sought damages from defendant-appellee, Frances E. Carpenter, in two claims for relief. The first claim alleged tortious interference with a contract for the purchase and sale of real estate. The second alleged unjust enrichment, and also sought to impose a trust on the property covered by the contract or the proceeds from the sale thereof. After a trial to the court, judgment was entered for defendant on both claims. Plaintiff appeals from that judgment. We affirm.
The following facts are undisputed. Defendant undertook to help plaintiff acquire a site for a project which included building the "world's tallest tower." It was understood that plaintiff was not obligated to pay defendant anything for her services, but that her compensation would come from any commission paid by the seller of the land when a sale was consummated. Defendant located a feasible site, owned by Mr. and Mrs. Brown. She obtained an exclusive listing agreement with the Browns, and thereafter helped negotiate a receipt and option contract which was executed by plaintiff and the Browns on April 14, 1964.
The contract was contingent on the obtaining of 1) a Federal Aviation Agency clearance for the construction of the tower, 2) adequate and proper zoning from county authorities, and 3) a building permit for the tower. Although no specific closing date was set forth in the contract, closing was to take place 90 days from the date of issuance of the building permit. However, the contract also provided that, at closing, the full purchase price was to be paid as follows: 25 percent in cash, with the balance in semi-annual installments, commencing on January 10, 1965. From these facts the trial court correctly found that it was the intent of the parties that the closing was to take place in 1964. The contract was later extended to April 19, 1965.
On March 27, 1965, defendant and the Browns entered into a receipt and option contract covering the same land as that in plaintiff's contract. Plaintiff was advised of this agreement at a meeting of the parties on April 1, 1965. Defendant's contract with the Browns contained the same conditions as the plaintiff's contract, but provided for payment of $1000 by April 1, 1965, and $500 a month until closing.
Although plaintiff had had some preliminary plans drawn for his project, he had not filed an application for his zoning with the county authorities prior to April 1, 1965. After that date he took no affirmative action toward fulfillment of the conditions, and, on September 24, 1965, he executed and delivered to the Browns a quitclaim deed conveying to them his interest in the property. Plaintiff did not pay anything to the Browns toward the purchase of the land.
Defendant's contract with the Browns was extended from time to time until she exercised her option in 1968. During all this time she continued to make the required monthly payments. She sold the property in 1968 for a price substantially in excess of the price which plaintiff would have had to pay under his contract. The sale by defendant triggered the filing of this action.
The trial court found that throughout all the dealings, each of the parties was fully aware of the relationships of all other parties involved and that there was full disclosure between the parties; that plaintiff's contract with the Browns was in effect until he executed the quitclaim deed on September 24, 1965; that plaintiff failed to perform under the contract so as to be able to exercise his option; and that the Browns were not ever called upon to perform under the contract and had not breached their contract with plaintiff. The court concluded that plaintiff had failed to prove any tortious interference causing a breach of contract.
 On appeal plaintiff contends that his contract was breached by the Browns when they executed their contract with defendant while plaintiff's contract was still in effect. However, as was stated in Zelinger v. Uvalde Rock Asphalt Co., 316 F.2d 47, (10th Cir.),
"A cause of action for tortious interference with a contract does not arise every time a third party negotiates with one of the contracting parties on the subject matter of the contract, or a seller deals with one buyer instead of another in a manner which may affect an existing contract."
That case also pointed out that one does not induce a seller to breach a contract with a third person when he merely enters into an agreement with the seller with knowledge that the seller cannot perform both it and his contract with the third person. In order to establish the alleged tort, a plaintiff must prove, inter alia, that the actions of the defendant actually induced a breach of the contract. Comtrol, Inc, v. Mountains States Tel. Tel. Co., 32 Colo. App. 384, 513 P.2d 1082. Here there was no breach on the part of the Browns. They had no duty to convey the property to the plaintiff until the three conditions had been performed, and plaintiff voluntarily terminated his contract without performing the acts necessary to place himself in a position to demand performance by the sellers.
 As to his second claim, plaintiff urges that it was error for the trial court to conclude that there was no fiduciary relationship between plaintiff and defendant and no breach of fiduciary duty by the defendant. Plaintiff argues that a fiduciary relationship was established when the defendant undertook, without compensation, to help the plaintiff locate a suitable building site prior to obtaining the exclusive listing from the Browns in October 1963. Plaintiff relies on C.R.S. 1963, 117-1-12(e), which prohibits a real estate agent from "acting for more than one party in a transaction without the knowledge of all parties thereto." It is not dual representation in and of itself which the statute prohibits, but dual representation without full disclosure to all parties. The trial court specifically found that, throughout the entire time period involved, each party fully understood the relationship of all other parties and that there was full disclosure. This finding is amply supported by the evidence. Even assuming that a principal-agent relationship actually existed between plaintiff and defendant, since there was full disclosure, there was no violation of any fiduciary duty by the defendant.
 Finally, the plaintiff argues that the defendant has been unjustly enriched by her profit from the sale of the Brown ranch in 1968 and that a constructive trust should be imposed upon these profits for the benefit of the plaintiff. In support of this contention, plaintiff cites First National Bank v. Harry W. Rabb Foundation, 29 Colo. App. 34, 479 P.2d 986. The pertinent language of that case is as follows:
"Necessary to most constructive trusts is the presence of fraud (active or constructive) or duress, or abuse of confidence by commission of a wrong, or some other form of unconscionable conduct or questionable means by which the trustee gains his title, Botkin v. Pyle, 91 Colo. 221, 14 P.2d 187."
The record discloses no evidence of any of these factors. Under these circumstances, a constructive trust is inappropriate.
JUDGE ENOCH and JUDGE PIERCE concur.