Velten v. Robertson, 671 P.2d 1011 {1983} 6?] P.2d lilll Colorado Court of Appeals+ Dir. [. Bob VELTEN and Thomas Brady. PlaintiffsAppellees. v. Olive ROBERTSON. Defendant and ThirdParty PlaintiffAppellant. v. Derrick ZIMMERMAN. Woodside Realty Company. and Charles (lschncr. individually and doing. business as Woodsidc Realty Company. a Colorado corporation. Third-Party Det'cndants-Appcllccs. No. HtKTAI 163. I May 5. 1983, I Rehearing Dcnicdlunc 2. MK}. I ('crtiurnri Denied Nor. 1. I983. Synopsis Appeal was taken om a judgment of the District Court: Jefferson County= Winston W. Woit'ington: i. granting specific performance of a real estate contract to purchasers. The Court of Appeals. Herman: J .. held that purchasers were not entitled to specic performance, where salesman who was to be compensated by purchasers. contacted vendor and obtained signatures of both purchasers and vendor. thereby rendering salesman vendor's agent. and his failure to disclose nature of his nancial interest to vendor a breach of his Miehael A. Littman__ 1Wheat Ridge: for thirdparty defendants appellees. Opinion BERLIANT Judge. The seller. lOlive Robertson: appeals a judgment granting specic performance of a real estate contract to buyers1 Bob Velten and Thomas Brady. We reverse. In January of 19?9, Derrick Zimmerman, a real estate salesman contacted seller to inquire about her willingness to sell a 10~unit apartment building. The seller would not agree to give the salesman an etciurire listing on the property. but. because seller indicated that she might consider selling the '1012 building. the salesman then contacted the buyers to inquire about their interest in the property. Together with the salesman, the buyers prepared a receipt and option agreement. The salesman obtained the buyers' signatures on this contract. The salesman then presented this contract to the seller at her home and obtained her signature The seller proposed a number of changes to the contract and an addendum was prepared. Two days later, the salesman also obtained the buyers' and sellers signatures on the addendum. Neither the contract nor the addendum contained a provision which would require the seller to pay the salesman a commission because the salesman had indicated to the seller that he would be compensated by the buyers. In lieu of a cash commission, the buyers offered \"to execute a note and deed of trust [secured by the property] in favor of [the salesman] in the sum of 55.000." The buyers also agreed that in the event the proper-t} were to be sold within the next year, the salesman would be entitled to 50% of the prots. Neither the salesman nor the buyers disclosed the details of this arrangement to the dueigydE-i 5'3\"\"- Reversed. The seller refused to close because she believed that her request for a financial statement from the buyers constituted a counteroffer which was not accepted. The court, however, Attorneys and Law Firms based on conflicting evidence, found otherwise. This finding is binding on this court on appeal. Broncucia v. McGee, 173 *1011 Louis A. Morrone, Denver, for plaintiffs-appellees. Colo. 22, 475 P.2d 336 (1970). Sherman & Howard, Raymond J. Turner, Denver, for The seller contended before the trial court, and now contends defendant and third-party plaintiff-appellant. on appeal, that the trial court erred in granting specific performance to the buyers because the salesman failed toVelten v. Robertson, 671 P.2d 1011 (1983) disclose his personal financial interest in the property and that, As an agent of the seller and the buyers, the salesman "has because the salesman was her agent as well as the buyers', this a fiduciary duty to act with the utmost faith and loyalty on was a breach of his fiduciary duty of disclosure. We agree. behalf of his principal[s]." This duty requires the agent to make a "full and fair disclosure ...." M.S.R., Inc. v. Lish, In M.S.R., Inc. v. Lish, 34 Colo.App. 320, 527 P.2d 912 (1974) supra. If, as here, the agent by the conveyance will acquire an we examined the elements of an agency relationship with a equitable or beneficial interest in the property, then the agent salesman. In Lish, the broker "contacted the defendant [seller] must specifically disclose the nature of that interest to his and told her he had procured a buyer, he prepared the contract, principals. If he does not do so, specific performance cannot he obtained the signatures of the parties, and his employer ... be ordered. M.S.R., Inc. v. Lish, supra. Here, the salesman did was to receive a broker's commission under the terms of the not disclose the nature of his financial interest to the seller. contract." After consideration of the above factors, we held The buyers were both parties to the contract which gave the that the broker was, as a matter of law, the agent of the seller. beneficial interest to the salesman, and they may not now seek to disavow their responsibility for the salesman's failure to Here, the salesman is also, as a matter of law, the seller's disclose this interest to the seller. agent. The evidence is uncontradicted that the salesman contacted the seller, and obtained the signatures of both the The judgment granting specific performance in favor of the buyers and the seller. The only difference between Lish and buyers is reversed the present case is that in Lish the "commission" was to be received from the seller, rather than from the buyers, as here. However, the establishment of an agency relationship does STERNBERG and COYTE , JJ., concur. not stand or fall on a determination of whether a commission was to be paid. Hickam v. Colorado Real Estate Commission, All Citations 36 Colo. App. 76, 534 P.2d 1220 (1975). 671 P.2d 1011 Footnotes Retired Court of Appeals Judge sitting by assignment of the Chief Justice under provisions of the Colo. Const., Art. VI, Sec. 5(3), and $ 24-51-607(5), C.R.S. 1973 (1982 Cum.Supp.)