195 P. 1038 | Or. | 1921
“Should you bring us a customer who will buy the property, and does buy the same, you still have the commission, if the sale be consummated by June 1, 1918.”
Still further:
“This commission is to be paid out of the first proceeds of said sale of said property.”
And finally:
“This contract shall continue until June 1, 1918, and if you during that time produce a customer ready, willing, and able to buy said property at said figure, or at any other figure we may make to him, you shall be entitled to your commission, if we sell to such customer by June 1, 1918.”
It is without dispute that the corporation called the Seattle-Portland Logging and Milling Company had
“Most certainly it is true that a corporation must have an existence before it can assume to dot or carry on business. The statute provides how a private corporation like this may be formed and organized, and prior to its lawful organization it is idle to think of its entering into contractual relations.”
The testimony shows continued negotiations between those assuming to represent the defendant, on the one hand, and Miller on behalf of the Seattle-Portland Logging and Milling Company, up to June 1, 1918. Nowhere in the testimony is it disclosed that Miller proposed to become personally liable for the purchase, of the property. The parties conducting the negotiations went so far as to provide a form, not of absolute sale, but one executory in its nature, for the future sale of the property, to which executory contract only the Oregon-Kansas Timber Company, the defendant, and the Seattle-Portland Logging and Milling Company were named as parties, but it was never executed by either party named therein. In this form only did Miller negotiate.
Conceding for the moment, without admitting, that the plaintiff’s part of his appointment as agent had
“The promoters of a corporation are personally liable for debts which they assume to contract in its name and behalf, before it has acquired a de facto organization, such as cannot be attacked except by the state, and if the governing statute prescribes a condition precedent to corporate existence, such as filing of articles of incorporation, they are personally liable for engagement which they have assumed to make in the name of the supposed corporation before that condition has been fulfilled.”
Practically without exception the precedents cited by the plaintiff on this point are those where a debt has been incurred on behalf of the prospective corporation,
A case much like this was Oregon Home Builders v. Montgomery Investment Co., 94 Or. 349 (184 Pac. 487). In that case a buyer was to be produced “ready and willing to consummate a deal.” Here, the condition is that “the sale be consummated with such customer by June 1, 1918.” There, the broker was authorized to retain his commission out of the first money paid on the purchase price. In the case at bar it is directly stipulated that “this commission is to be paid out of the first proceeds of said sale of said property.” After discussing the term “consummation of the deal” and citing many authorities, Mr. Justice Harris used this language:
The fund out of which the commission in the instant case was to be paid has never been brought into existence. In suing upon the contract, not for the damages resulting from a supposed breach, but for the commission earned, it is incumbent upon the plaintiff to prove not only his performance of the terms, but also that the fund out of which he was to be paid has come into existence.
It would seem that in offering both Miller and the corporation as purchasers, if that were the case, as alleged in the complaint, the defendant would have a right to rely not only upon the credit of Miller, but also upon that of the proposed corporation, involving the responsibility of all of its stockholders, not only Miller if he should subscribe, but also all
The motion for nonsuit should have been allowed. The judgment is reversed, and the cause remanded to the Circuit Court, with directions to enter a judgment of nonsuit in favor of the defendant.
Reversed and Remanded.