Columbia Realty Investment Co. v. Alameda Land Co., 168 P. 64

Columbia Realty Investment Co. v. Alameda Land Co.

168 P. 64 | Or. | 1917

Lead Opinion

Me. Justice McCamant

delivered the opinion of the court.

1. Plaintiff contends that when it produced a purchaser with whom defendant made a binding contract of sale, it earned its commission of 20 per cent of the purchase price and its right to this commission was not lost by the default of the purchaser or the cancellation of his contract. This is the general rule: Stewart v. Will, 65 Or. 138, 140, 141 (131 Pac. 1027). But it is subject to modification by the contract of the parties. The material question here is whether the contract on which plaintiff relies contains a promise to pay commissions at all events or only out of a specified fund, to wit, the amounts paid by the purchasers. It is provided in paragraph 1 that in default of the extension tentatively provided for the agency should terminate “except that they (the selling agents) shall be entitled to their commission theretofore earned by them * # , the same to be paid when collected by said company.”

In the second paragraph the contract specifies the commissions of the agents and provides:

“Said commissions shall be paid as follows: said agents shall be entitled to take and receive a sum equal to twenty per cent of the selling price aforesaid, out of the first moneys collected from the sale of each and every lot sold under this agreement.”

The foregoing language plainly suggests an intent of the parties to pay commissions out of the' moneys collected from the purchasers of the property. This intent is emphasized by the absence from the contract of an express promise of defendant to pay the commissions. Further light is thrown on the intent of the parties by the following language, found in paragraph 3:

*287“Said Agents may retain ont of each payment collected by them such amount, as herein provided, as may be then due and payable to them as commission aforesaid, but not otherwise.”

The language means that the agents are entitled to retain out of the moneys collected on each sale, such sum as shall suffice to pay the commission earned on that sale. They are not entitled to charge to defendant all commissions earned by all sales effected and retain out of their collections all moneys standing to their credit in such account. It affirmatively appears from the form of agreement attached to the sales contract that the parties contemplated that some of the purchasers would fail to make the monthly payments called for and that some of these agreements of purchase would have to be canceled. The sales contract makes provision for the apportionment between the parties of the expense incident to such cancellations.

In paragraph 8 there is provision for raising the prices of the lots and it is provided that:

“The amount over and above the present selling price # * shall, on all property sold, be divided equally, share and share alike, between said Agents and said Company as a further commission to said Agents, provided that said additional commission shall not be paid until said Company has received fifty per cent (50%) of the purchase price of the lot or lots so sold, when it shall be paid upon demand to said Agents. ’ ’

2, 3. It may be conceded that the language of this contract is not well chosen to effect the purpose in view, but we think the intent of the parties sufficiently appears that plaihtiff was to be paid commissions not at all events, but only out of a specific fund. Such a promise to pay is enforceable only on allegations and *288proof that the fund named is adequate for the payment demanded: Owen v. Lavine, 14 Ark. 389, 396; Waters v. Carleton, 4 Port. (Ala.), 205; National Sav. Bank v. Cable, 73 Conn. 568, 572 (48 Atl. 428); Fulton v. Varney, 117 N. Y. App. Div. 572, 576 (102 N. Y. Supp. 608); Morrison v. Austin State Bank, 213 Ill. 472, 487 (72 N. E. 1109, 104 Am. St. Rep. 225, 233); Kelly v. Bronson, 26 Minn. 359, 360 (4 N. W. 607); Welch v. Mayer, 4 Colo. App. 440, 443 (36 Pac. 613, 614.)

It is held specifically that a real estate broker cannot recover commissions payable out of the purchase price without proof that enough of the purchase price has been paid to cover the commissions claimed: McPhail v. Buell, 87 Cal. 115 (25 Pac. 266); Lindley v. Fay, 119 Cal. 239, 243 (51 Pac. 333); Boysen v. Frink, 80 Ark. 254, 258 (96 S. W. 1056). Plaintiff cites Hugill v. Weekley, 64 W. Va. 210 (61 S. E. 360, 15 L. R. A. (N. S.) 1262), and Cheatham v. Yarbrough, 90 Term. 77, 80 (15 S. W. 1076). These were cases in which the brokers had produced purchasers able, ready and willing to buy and the sales were defeated through the fault of the owners. In the West Virginia case the purchaser refused to buy because the representations of the owner were not borne out by an examination of the property, and in the Tennessee case there was a substantial defect in the title. The question involved in the case at.bar was not determinative of either of these controversies.

4. Plaintiff claims that as the assignment to it of a part of the sales contract left the collections wholly in the hands of Ferguson and Ilamblet, plaintiff’s rights are unaffected by the failure to collect the installments due from purchasers. A stream cannot rise higher than its source. We have seen that the contract pro*289vides only for a conditional payment of these commissions. Such being its effect as between the original parties, the stipulation for payment could not become absolute by the assignment to plaintiff.

5. Plaintiff’s complaint contains no allegation that the fund to which plaintiff was to look for payment of the commissions claimed was adequate for such purpose and the finding of the lower court was that there was no fund applicable to such payment except $65.16. The testimony has not been attached to the bill of exceptions and we are therefore bound to assume that this finding is supported by competent proofs.

6. Plaintiff complains that the lower court refused to receive a number of specifications of evidence offered in plaintiff’s case in chief. This testimony all went to support the plea of estoppel set up in the reply. The complaint failed to state facts sufficient to constitute a cause of action for the reasons above stated. The affirmative matter in the reply was material, therefore, only as tending to rebut the counterclaim pleaded in the answer. The testimony in support of these allegations of the reply could be received only in rebuttal and the court did not err in rejecting the proof as a part of plaintiff’s case in chief.

7. In rebuttal plaintiff made the following offer:

“The plaintiff at this time offers to produce witnesses and prove that the cancellation of the contract —that all the cancellations of contracts which have been referred to in the case are the result of an interference by the Alameda Land Company in the way of dividing lots up among the stockholders prior to the expiration of the contract, throwing the same upon the market at prices away below the prices at which the Columbia Realty Company was authorized to sell the same; so that it was profitable for the purchasers to surrender the contracts and forfeit the moneys which they had paid upon the same, whereupon they *290could repurchase the lots and still save money by doing so; and by the actual presence of stockholders upon the tract offering the lots at these reduced prices, some of the same lots which the Columbia Realty Company was trying to sell, and at a time prior to the expiration of their contract; that is, during the month of November, 1912.”

Defendant contends that an offer of proof cannot be made without calling a witness and asking an appropriate question. In support of this contention we are cited to: Ralston v. Moore, 105 Ind. 243 (4 N. E. 673, 675); Smith v. Gorham, 119 Ind. 436 (21 N. E. 1096, 1097); Tobin v. Young, 124 Ind. 507 (24 N. E. 121, 123); Darnell v. Sallee, 7 Ind. App. 581 (34 N. E. 1020, 1021); Gray v. Elzroth, 10 Ind. App. 587 (37 N. E. 551, 552, 53 Am. St. Rep. 400). These authorities are. in point and they are supported by the opinion of Mr. Justice Moore in First National Bank v. Oregon Paper Co., 42 Or. 398, 402 (71 Pac. 144, 971). In this opinion it is said: .

“If the appellants were not allowed to prove their claim, they should have called witnesses, and stated to the court the testimony which it was expected would be elicited from them. ’ ’

Plaintiff relies on this branch of the case on Scotland County v. Hill, 112 U. S. 183, 186 (28 L. Ed. 692, 5 Sup. Ct. Rep. 93). This case undoubtedly tends to support plaintiff’s contention, but the offer of proof in that case was much more specific than in this. The name of the witness relied on was given and the precise testimony relied on was stated in the offer. In the case at bar no witness was named and the offer of proof was couched in the most general terms. We IhiuTr that plaintiff should have named its witnesses and specified the acts of interference relied on. The *291offer should have named the contracts of purchase which were canceled because of each act of interference by the defendant. Unless the calling of witnesses is waived by the court or by the adverse party, we think the better practice is to call the witnesses relied on and ask appropriate questions. If objections are sustained to these questions the time is ripe for an offer of proof. The court did not err in declining the offer in question.

8. Plaintiff’s objection was not well taken to defendant’s testimony showing that purchasers had failed to make their payments. It was competent for the defendant to prove by the witness Bosworth the practice of the defendant in canceling contracts held by purchasers who were unable to meet their obligations. We cannot say as a matter of law that these cancellations required formal action by the board of directors of the defendant.

9. It is finally contended that the lower court erred in refusing to make findings on some of the material issues raised by the pleadings. The court found that plaintiff had received all the commissions to which it was entitled except $65.16; that all the cancellations of contracts had been made as alleged; that the expense of such cancellations was $351.55, of which $309.26 was chargeable to plaintiff, and that all of these cancellations were necessary. These findings support a judgment in defendant’s favor for $244.10. The finding that the cancellations were necessary negatives plaintiff’s claim that the cancellations were due to defendant’s unwarranted interference with the purchasers secured through plaintiff’s efforts. The findings therefore determined the controversy and support the judgment. In such case the failure to make additional findings is not error: Lewis v. First Nat. Bank, *29246 Or. 182, 188 (78 Pac. 990); Freeman v. Trummer, 50 Or. 287, 290 (91 Pac. 1077); Naylor v. McColloch, 54 Or. 305, 315, 316 (103 Pac. 68); Wells v. Great Northern Ry. Co., 59 Or. 165, 175 (114 Pac. 92, 116 Pac. 1070, 34 L. R. A. (N. S.) 818).

(168 Pac. 440.)

The judgment is affirmed. Affirmed.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Bean concur.

Rehearing

Denied January 8, 1918.

On Petition for Eehearing.

Department 2.

Mr. Justice McCamant

delivered the opinion of the court.

We have given mature consideration to the exhaustive petition for a rehearing which plaintiff has filed. It is directed to so much of our opinion as sustains the action of the trial court in rejecting plaintiff’s offer of proof on rebuttal. We held the offer was properly rejected because no witness was on the stand to whom appropriate questions were asked, and also because the offer was couched in general terms and failed to specify the facts to be proved.

10. Plaintiff claims that these grounds of objection are untenable because the offer in the lower court was objected to only on the general ground that the testi*293mony offered was incompetent, irrelevant and imma- ' terial. Many authorities are cited to the effect that when testimony is admitted over this general objection, the appellate court will not review an assignment of error based thereon unless the testimony is obviously inadmissible for any purpose. This principle is well established and is recognized by our own decisions: State v. Martin, 47 Or. 282, 292 (83 Pac. 849, 8 Ann. Cas. 769); Hildebrand v. United Artisans, 50 Or. 159 (91 Pac. 542); Ferrari v. Beaver Hill Coal Co., 54 Or. 210, 222 (94 Pac. 181, 95 Pac. 498, 102 Pac. 175, 1016). In the case at bar, however, the testimony was excluded. The presumption is that there was no error and the burden therefor devolves on plaintiff to show that the testimony offered was admissible, and that plaintiff was prejudiced by its exclusion. In 1 Wigmore on Evidence, page 59, the rule is stated thus:

“When a general objection is sustained by the trial court, it may be presumed that the reasons were apparent to all parties without statement; and as the exception is here to be taken by the proponent of the evidence, it is fair to require him to make clear therein the basis of his claim for its admissibility, if he had rested on any specific ground; hence, the general objection will suffice, if on the face of the evidence and the rest of the case there appears to be any ground of objection which might have been valid (or, otherwise stated, if there is any purpose for which the evidence would conceivably be inadmissible).”

In 5 Jones on Evidence, 377, it is said:

“The rule that the objection should be specific has no application, however, where a general objection is sustained; in that case, the party against whom the ruling was made cannot urge that objection as too general.”

The text quoted is supported by the following adjudications: Tooley v. Bacon, 70 N. Y. 34; Baldwin v. *294Threlkeld, 8 Ind. App. 312 (34 N. E. 851, 35 N. E. 841); Leach v. Dickerson, 14 Ind. App. 375 (42 N. E. 1031); Haas v. C. B. Cones & Son Mfg. Co., 25 Ind. App. 469 (58 N. E. 499); Rosenberg v. Sheahan, 148 Wis. 92 (133 N. W. 645); Hurlbut v. Hall, 39 Neb. 889 (58 N. W. 538, 540); People v. Graham, 21 Cal. 261, 266; Spottiswood v. Weir, 80 Cal. 448 (22 Pac. 289). The industry of counsel for plaintiff has discovered some cases to tbe contrary, as McKinnon v. Johnson, 57 Fla. 120 (48 South. 910), and Rush v. French, 1 Ariz. 99 (25 Pac. 816, 824). These cases are out of harmony with the weight of authority and we are forbidden by our statute from following them. Section 556, L. O. L., provides that a judgment “shall only be reversed or modified for errors substantially affecting the rights of the appellant. ’ ’ The rights of an appellant are not injuriously affected by the exclusion of inadmissible testimony, even though the objection reserved thereto is too general or is otherwise inadequate.

11. .Several additional authorities are cited to the effect that when the trial court settles a bill of exceptions reciting the offer of proof, it will be assumed on appeal that the witnesses were present and the evidence was properly offered; for example, Biddick v. Kobler, 110 Cal. 191, 196 (42 Pac. 578), and Tathwell v. Cedar Rapids, 114 Iowa, 180 (86 N. W. 291). We do not think that the certification of a bill of exceptions should be given the effect contended for. It is the practice in this state to incorporate in a bill of exceptions the objections to questions and the offers of proof in language taken from the reporter’s transcript and a trial court refusing so to do would be regarded as unfair to the unsuccessful litigant. The certification of the bill does not import a waiver by the trial court of the calling of witnesses in connection with an offer of proof. The *295rule announced on the subject in the former opinion is supported by the following additional authorities: Eschbach v. Hurtt, 47 Md. 61, 67; Chicago City R. Co. v. Carroll, 206 Ill. 318, 328, 329 (68 N. E. 1087); Stevens v. Newman, 68 Ill. App. 549, 552; Robinson v. State, 1 Lea (69 Tenn.), 673. The reasons for insisting on the calling of witnesses and propounding suitable questions are stated in the first two cases cited.

There can be no doubt that the offer of proof was properly rejected on the ground that it was general in terms and did not specify the evidence available. In Reynolds v. Continental Ins. Co., 36 Mich. 131, 144, Mr. Justice Graves says:

“In submitting propositions of proof it is requisite that counsel should be distinct and clear. A proposition should embody the specific fact or facts in such connection and in such terms as to be apprehended and ruled in the intended sense by the trial judge, and be examined and applied in the appellate court in the proper light to test the accuracy of the ruling if an adverse one. # # The facts proposed ought to be indicated with sufficient clearness in regard to identity and sense to enable the court and adverse counsel to judge intelligently concerning their admissibility.”

In 9 Enc. Evidence, 165, it is said:

“In making an offer to prove it is requisite that counsel should be distinct and clear. The offer should embody the specific fact or facts in such connection and in such terms as to be apprehended and ruled upon in the intended sense by the trial judge, and be examined and applied in the appellate court in the proper light to test the accuracy of the ruling, if adverse. A mere general proposition in so many words to make out the case set forth in the pleadings is not one that the court is bound to take into consideration and rule upon as an offer of proof.”

This rule is supported by the following authorities: Harmon v. Decker, 41 Or. 587, 592 (68 Pac. 11, 1111, *29693 Am. St. Rep. 748); Van Arsdale v. Buck, 82 App. Div. 383 (81 N. Y. Supp. 1017, 1019); Matter of Bateman, 145 N. Y. 623 (40 N. E. 10); Middleton v. Griffith, 57 N. J. L. 442 (31 Atl. 405, 408, 51 Am. St. Rep. 617); Lewis v. Nenzel, 38 Pa. St. 222, 225; Reeves v. McComeskey, 168 Pa. St. 571 (32 Atl. 96); Cole v. High, 173 Pa. St. 590 (34 Atl. 292, 294); Bland v. O’Hagan, 64 N. C. 471, 473; Carlton v. State, 8 Heisk. (55 Tenn.) 16; Dwyer v. Rippetoe, 72 Tex. 520 (10 S. W. 668, 673, 674); Russell v. Lake, 68 Ill. App. 440, 441; Lyon v. Batz, 42 Mo. App. 606, 618; Wolfard v. Farnham, 47 Minn. 95 (49 N. W. 528, 529); Pendleton v. Smissaert, 1 Colo. App. 508 (29 Pac. 521, 523); Palmer v. McMaster, 10 Mont. 390 (25 Pac. 1056, 1058); Kennedy v. Currie, 3 Wash. 442 (28 Pac. 1028, 1031); Johnson v. Merry Mount Granite Co., 53 Fed. 569, 571.

Note.—Supplemental petition for rehearing was denied February 5, 1918, without a written opinion. Reporter.

12. An offer of proof should state facts rather than conclusions. Its language should be not vague, but distinct ; not general, but specific. It is not sufficient that it state the ultimate facts in language appropriate to a pleading; the evidentiary facts must be set out.

In the instant case plaintiff’s offer should have named the witnesses relied on; it should have identified the contracts of purchase surrendered as the result of the defendant’s interference; the acts of interference causing the surrender of each contract should have been specified and the parties responsible for these acts should have been named.

A departure from the’ principles announced in the former opinion would establish a dangerous procedure not justified by reason or authority. The petition for rehearing is denied. Affirmed. Rehearing Denied.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Bean concur.