[No. 2348.]

#### Frank v. Bonnevie.

1. Principal and Agent — Commission—Contracts—Sales.

Where an owner contracted with an agent to pay him ten per cent, of the purchase price if the agent should produce or introduce a customer to whom certain property should he sold *165on terms satisfactory to the owner, the commission to be paid at the date of the payment of the purchase price, or in installments according to payment by the purchaser, and a purchaser was introduced to whom a sale was made, and, as part of the purchase price, the purchaser paid off certain liens on the property held by other parties, the agent’s commission was not dependent on the payment of the entire purchase price, nor limited to payments made to the seller, or for his interest, but he was entitled to recover from the seller ten per cent, of the amount paid other parties in settlement of liens on the property as soon as such payments were made, although the seller had not received any part of the purchase price.

2. Receivers — Certificates—Liens.

Obligations secured by receiver’s certificates are liens upon the property in the hands of the receiver.

*Appeal from the District Court of Arapahoe County.*

Messrs. Carpenter & McBird, for appellant..

Mr. ¥m. W. Dingman and Mr. Richard McKnight, for appellee.

Maxwell, J.

This was an action by appellee against appellant upon a written contract dated April 1, 1898, pertinent parts of which are:

Frank, being the principal owner of a cyanide mill or plant, is desirous of disposing of the same. Bonnevie is willing to assist in the disposition thereof. Therefore, “in case said Bonnevie should produce or introduce a customer for said cyanide plant, to whom the same shall be disposed of on terms satisfactory” to Frank, Frank agrees to pay Bonnevie a. commission of ten per cent, of the purchase price, cash or- stock, “said commission to be paid said Bonnevie at the date of the payment of the purchase price or in installments, according to payment by such purchaser.”

Trial to the court, judgment for plaintiff for $1,500.00.

*166There is no substantial conflict in the testimony, by which, and the pleadings, the following facts are established:

The United States Economic Reduction Company built a chlorination mill at Florence, Colorado, upon land the title to which stood in the name of David H. Moffat, trustee, under a contract to build a mill which would treat successfully 100 tons of ore per day. This contract not having been complied with, the property of the Unitfed States company passed into the hands of a receiver. The receiver leased the property to The American Reduction Company, in which latter named company Frank was a large stockholder, he and his friends owning a majority of the stock. The American company changed the plant to a cyanide plant. At the date when the commission contract above referred to was made, the American company having become embarrassed, had closed down operations at the mill, owing $10,-000.00 to the First National Bank of Denver, and $5,000.00 or $6,000.00 to The F. M. Davis Iron Works Company, which amounts were liens upon the property. April 13, 1898, Frank wrote Bonnevie a letter giving details with reference to the property. Bonnevie showed this letter to Frambach, who seems to have been looking for a mill, and at Frambach’s request Bonnevie arranged an interview between Frank and Frambach which took place April 15, 1898, at Frambach’s office, Bonnevie not being present. Subsequently Bonnevie had several interviews with Frambach regarding the matter. July 23 Frambach made a written contract with Frank by which Frambach, acting for himself or as agent for The Cripple Creek Beam Milling Company, agreed that, in the event that he purchased the mill at the receiver ’s sale, he would pay the obligations of The American Reduction Company to the First National Bank *167of Denver and The F. M. Davis Iron Works Company, amounting to about $15,000.00 or $16,000.00, and would pay Frank for his interest in said' mill and machinery $10,000.00 and 100,000- shares of the capital stock of The Cripple Creek Beam Milling Company. Frambach purchased the property at the receiver’s sale July 26. Subsequently, either he or The Cripple Creek Beam Milling Company paid to the First National Bank of Denver and The F. M. Davis Iron Works Company $15,000.00 in settlement of the obligations of The American Reduction Company above referred to.

It is contended by appellant that no recovery can be had, for the reasons, that the property in which appellant was interested, viz., the right and title to the machinery of The American Reduction Company, has not been paid for; that appellant has not received one dollar of the amount which has been paid, and, therefore, he is not liable under the terms of the commission contract.

The commission contract does not limit appellant’s liability to the payment of the commission on the purchase price of the machinery of The American Reduction Company, or to the moneys paid to appellant. Its terms are:

“That in case said Bonnevie should produce or introduce a customer for such ’cyanide plant to whom the same should be disposed of on terms satisfactory to said party of the first part (Frank), the said party of the-first part hereby agrees to pay or cause to be paid to said Bonnevie a commission of 10 per cent, of the piurchase price, if paid in cash, or such part thereof as may be paid in cash, and any remainder in shares at the rate of ten (10) per cent, of the capital stock in any new company formed, the said commission to be paid said Bonnevie at the date of the pay*168ment of the purchase price, or in installments according to payment by said purchaser.”

It is apparent that the subject-matter of the contract is the cyanide plant; that the agent was to produce or introduce a customer to whom said plant should be disposed of, on terms satisfactory to appellant; that thereupon the agent should be entitled to a commission of ten per cent, of the purchase price, payable in installments as the purchase price was. paid.

The agent introduced the customer, with whom a satisfactory contract was made; the purchaser has paid $15,000.00 of the purchase price, and under the terms of the contract, the stipulated commission on that installment of the purchase price is due.

Payment of the commission was not dependent upon the payment, by the purchaser, of the entire purchase price, but upon the payment of any installment.

Under the authorities, the agent has made out a case against the principal, which would entitle him to *recover.*— Ross *v. Smiley,*18 Colo. App. 204, and cases cited.

The case under consideration is unlike the cases cited by appellant, which hold that the agent is not entitled to a commission where he produces a purchaser who is only willing to make an option contract, and forfeits a small sum paid upon the execution of the contract, rather than accept the property; or where the agent’s commission is dependent upon his producing a customer, at a definite price and upon definite terms; or where the commission is dependent upon a completed sale, payment of the entire purchase price, and transfer of the property.

It is said that the sale was not made by reason of the introduction of Frambach to appellant.

The trial court found that the sale was consum*169mated by appellee’s efforts. We cannot say that such finding was not supported by the evidence.

The judgment will be affirmed.

*Affirmed.*

*On Petition for Rehearing.*

*Per Curiam.*

It is said, in the petition for rehearing, that the following statement in the original opinion is erroneous, viz:

‘ *‘*The American company having become embarrassed, had closed down operations at the mill, owing $10,000.00 to the First National Bank of Denver, and $5,000.00 or $6,000.00 to The F. M. Davis Iron Works Company, *ivhich amounts ivere liens upon the property.”*

The testimony of Mr. Frank is:

“I think the obligation in the National Bank was a note, and the obligation of the F. M. Davis Works was an open account, *secured hy receiver’s certificates of The United States Economic Redticiion Company.”*

If secured by receiver’s certificates, these obligations were liens upon the property.

The above testimony is undisputed.

The commission contract, upon which this action is based, did not limit the agent’s right to a. commission upon the sale of Frank’s interest in the cyanide plant, or the payment of any portion of the purchase price t.o *Frank,*but stipulated for the payment of a commission, upon the production or introduction of a customer who should purchase such cyanide plant on terms satisfactory to Frank.

The agent produced a customér, to whom thé sale was made; a portion of the purchase price of the cyanide plant has been paid; the agent is entitled to the agreed commission.

If it was Frank’s intention to limit his liability *170to-the payment of a commission upon the purchase price of *1ns interest*in the cyanide plant, and up'on such portion of the purchase price as was paid *Mm,*he should have done so in his contract. The contract does not so read.

All testimony contradictory of the contract was irrelevant and immaterial, and was properly disregarded by the court in its findings.

The petition for rehearing is denied.

*Denied.*