122 P. 302 | Or. | 1912
delivered the opinion of the court.
It is admitted in the testimony that neither of the defendants had any direct negotiations with the plaintiff in person. It is also admitted that the plaintiff herself, neither directly nor by any person acting for her, had any direct negotiations with the defendant Ellen J. Tweedle. In all the transactions involved, the plaintiff was represented by W. H. Copeland, her husband, acting as her agent by her consent. It appears in evidence also that early in April, 1910, John Corcoran, the brother of the defendant Ellen Tweedle, addressed to her this letter signed by himself:
“Sister Éllen J. Tweedle, if you wish, in consideration of one dollar and other valuable considerations, to give me an option of thirty days to sell your claim for four thousand dollars ($4,000.00) and pay me 5 per cent*306 commission for selling, executing a deed and furnishing an abstract, please sign this option and mail to me and as soon as I can have disposed of it during this time will notify you that everything is ready.
Yours truly,
John Corcoran.”
At the foot of the instrument Mrs. Tweedle wrote and signed these words, “I hereby accept the above offer,” and returned the same to Corcoran at Astoria. This writing and the acceptance are both undated, but the testimony shows that they were executed about April 7, 1910. The plaintiff and her husband reside in Astoria where they conduct a mercantile establishment. The defendants reside some distance from Astoria in a remote part of Clatsop County. Plaintiff’s husband testifies in substance that he had written the defendant David Tweedle, inquiring about real property in his vicinity with a view of purchasing timber lands, and that in the month of April, 1910, David Tweedle and Corcoran came to the store and, in conversation about lands, Corcoran told him of the land in question and stated that it had on it timber which would scale 4,000,000 feet or better. The plaintiff herself testifies that, while she did not participate in this conversation, she heard very distinctly the statements made by Corcoran. Both she and her husband testify that Tweedle was present and made no objection to this statement, but, on being asked about the same by the plaintiff’s husband, Tweedle said that it is a good claim. Corcoran fixes this conversation during the 30-day period described by his authority above quoted, but he says that he stated to Mr. Copeland that in his (Corcoran’s) judgment the claim had on it between 3,000,000 and 4,000,000 feet. Mr. Tweedle identifies this conversation but, without specifically denying Copeland’s testimony, says he does not remember Corcoran making the statements imputed to
O. F. Morton is a real estate agent residing in Astoria, and it appears from the evidence that he and Corcoran were in some way operating together. When Corcoran received his letter with his sister’s acceptance, already quoted, he got into communication with Morton who entered upon his own book the following:
“Ellen J. Tweedle, April 7, 1910, southwest quarter of the northeast quarter and lots numbered four and five of section 35 and lot 3 of section 34 in township 4 north of range 8 west, containing 138.36 acres.”
No purchaser was secured or sale made of the land during the 30-day period mentioned in the correspondence between Corcoran and his sister Ellen. On the last day of the 30-day period, however, the defendant Ellen Tweedle was in Astoria and at the suggestion of her brother, went to Morton’s office where, after some negotiation, Morton added to the language in his book, already quoted, the following words:
“Including June 21st, I give this option to O. F. Morton, for a[c John Corcoran, the above claim, in consideration of two dollars.”
Mrs. Tweedle then signed this writing in Morton’s book as thus amended. Morton and Corcoran testify in substance that, in winding up the transaction, all the latter had to do with it was to induce his sister to give Morton the additional two weeks in which to produce a purchaser. This does not alter the case when taken in connection with the language of the amendment to the entry in Morton’s book and the fact that Corcoran received part of the commission for making the sale. Substantially, in legal effect, it was a continuation of the original enterprise of securing a buyer varied only by a conventional change of agents. The fraudulent representation had been made by one in authority and its effect on the plaintiff only remained to be seen.