94 P. 966 | Or. | 1908
Lead Opinion
Opinion by
This is an action to recover a commission of $1,750 alleged to be due plaintiffs as real estate brokers for the sale of placer mining property, and is brought here on an appeal from a judgment in plaintiffs’ favor. The errors assigned, and here relied upon, are: (1) The overruling of defendant’s motion for nonsuit; (2) admission in evidence of certain conversations between persons not in the presence of defendant’s agents; (3) overruling the motion to set aside the verdict. The testimony offered by plaintiffs in their case in chief, tends to establish about this state of facts: About August 1, 1905, E. W. Tarr came from Ohio to Oregon in search of mining investments. After reaching Douglas County he met plaintiffs, who were engaged in the real estate business at Roseburg, and was by them informed that they could furnish the property desired. Clayton indicated he would go and see some mining property near there, which Col. J. G. Day had in charge, and, if he could get it for sale, could furnish him some good placer ground. Tarr expressed a wish to go along with him, to which Clayton assented. On their way to the mine they met Colonel Day, and, after a few preliminary remarks, Clayton made his business known, inquiring as to his chances of handling the property for him, to which Day replied to the effect that it was for sale, that it would be all right, and told him to go and see his son. Dr. J. G. Day, who was at the mill, and he would show him all about it. Clayton did as directed, and, while
“Olalla Mining Co., Olalla, Oregon, August 3, 1905.
Mr. E. W. Tarr—Dear Sir: Referring to conversation had relative to the sale of the Olalla Mining property, I beg to say in behalf of said company, that we will sell the realty comprised in the Bushnell and Hoover purchase, deeds of which were shown you, together with existing water rights and pipes and giants now on the ground for the sum of $35,000 (thirty-five thousand dollars) , payable as follows: Five thousand dollars within forty days from date hereof and the balance in twelve semi-annual installments of two thousand five hundred dollars each, each installment to bear interest at the rate of 6 per cent per annum from date of delivery of deeds, and to be secured by mortgage on property conveyed. Yours, etc., J. G. Day, Treas.”
After receipt of this letter, Tarr went back to Ohio to raise the necessary funds for the venture, and returned shortly afterwards in company with E. C. Waters, with whom he was driven to the mine by Clayton. It appears that Tarr had organized what is termed as the “Sacajawea Mining Company,” intending to take one-fourth of the stock, with the expectation that Waters would take up the balance, and thereby furnish the funds with which the property was to be purchased. On learning of these plans, and that the title was not in the Sacajawea Mining Company, as represented by Tarr, Waters became dissatisfied, resulting in a disagreement between them. Tarr then gave Up the project and returned to Ohio, leaving Waters at the mine. Negotiations were threafter continued with the latter, with the result that within a few months the mine was sold and conveyed to the Shirley Mining Company, organized by Waters for
It is unquestioned that plaintiffs were instrumental in interesting Tarr in the proposition; that Tarr went east, and as a means of furnishing money with which to take up the property brought Waters with him; that plaintiffs took Tarr and Waters to the mine, and opened up negotiations with a view of purchasing; and that, while Colonel Day was agent for the company and knew that plaintiffs were to get a commission or expected one, no objections were made thereto, nor was their right in this respect questioned until after the'sale was consummated. Plaintiffs brought the buyer and seller together. The sale
■ 2. It is maintained that, even if it should be held that there was sufficient evidence from which a contract or agreement between Colonel Day and the plaintiffs may be implied, it was not such a contract as would bind the company. Throughout the entire transaction he was the manager and treasurer of defendant. His testimony discloses that the corporation abided by everything he did. It is a well-settled principle that notice to an officer or agent of a corporation, in due course of his employment, and in respect to a matter within the scope of his authority, or apparent authority, concerning affairs of such character that it becomes his duty to communicate the information to it, is notice to the corporation, whether he imparts to it such information or not: Clark & Marshall, Corporations, §§718, 719; Wood'v. Rayburn, 18 Or. 1 (22 Pac. 521) ; Rayburn v. Davisson, 22 Or. 242 (29 Pac. 738) ; McLeod v. Despain, 49 Or. 536 (92 Pac. 1088).
Q. What was that conversation?
A. I asked him how the trial turned out, and he said that it was postponed. He said: “We agreed to pay the commission, and, if I had my way about it, I would see that they got it.” My sister, Mrs. Frank Pickett, heard him.
Q. You were talking about this case?
A. Yes. He did not mention any names. He said: “We agreed to pay the commission, and, if I had my way about it, I would see that they got it.”
This testimony was admitted over defendant’s objection, and its admission constitutes one of the errors assigned. The record discloses that throughout the transaction Dr. Day figured very conspicuously in the deal, and was the person to whom plaintiffs were first sent by the manager for an inspection of the contemplated purchase, and his testimony was to the effect that he had made some kind of arrangement with Tarr, whereupon he was to have an interest in the Sacajawea Company, and had agreed to see that plaintiffs received their commission. It is obvious that this testimony was offered by defendant for the purpose of showing that the prom
Finding the errors assigned to be untenable, it follows that the judgment of the court below should be affirmed.
Affirmed.
Rehearing
Decided July 21, 1908.
On Petítion por Rehearing.
Opinion by
It is contended that in our former opinion we held “that a recovery might be had upon a ‘subsequent agreement, express or implied,’ to the agreement alleged in the complaint,” which holding, if as contended, is error. The amended complaint, however, upon which the cause was tried, omitting formal parts, avers:
“That defendant is a corporation, and on or about August 1, 1905, was the owner of certain mining property in Douglas County, Oregon; that on or about said date defendant employed plaintiffs to secure a purchaser for said mining property, and that in pursuance of said employment, plaintiffs found a purchaser for said property, and defendant sold the same to said purchaser on or about January. 20, 1906, for the sum of $35,000; that defendant agreed to pay plaintiffs a reasonable compensation for securing said purchaser; and that $1,750 is a reasonable compensation for said services,” etc. Without testing the complaint by demurrer or motion, an answer was filed denying all the averments, except “that defendant was a corporation and owner of the mining property described in the amended complaint at the date therein alleged”; and upon issues thus formed the cause was tried.
Much space is given in the petition to a rediscussion of the evidence, in reference to which it is urged that we are in error in our narrative of the facts, a sample of which is that we should have said $10,000 was paid on the purchase price of the property at the time of the sale in place of “$5,000 cash”; but this, like other details to which our attention is directed, is immaterial, for which-
It is next contended, as formerly, that Col. Day was not acting within the scope of his authority in his alleged transactions with plaintiffs; and many authorities are. cited in support thereof. This feature has been fully considered, and, as stated in our former opinion, whatever may be the rule elsewhere, it is settled in this State chat a person cannot acquiesce in, and receive the benefits of, his agent’s acts, while such agent was acting under an apparent authority concerning matters with respect to which it became his duty to inform his employer, and at the same time be relieved of the burdens thereof, whether the transaction concerns the sale of realty or other business dealings: Coleman v. Stark, 1 Or. 115, 118; Wood v. Rayburn, 18 Or. 1 (22 Pac. 521) ; Kyle v. Rippey, 20 Or. 446, 454 (26 Pac. 308) ; Rayburn v. Davisson, 22 Or. 242 (29 Pac. 738) ; La Grande Nat. Bank v. Blum, 27 Or. 215 (41 Pac. 659) ; Dight v. Chapman, 44 Or. 265, 278 (75 Pac. 585: 65 L. R. A. 793) ; Good v. Smith, 44 Or. 578, 585 (76 Pac. 354) ; McLeod v. Despain, 49 Or. 536, 563 (90 Pac. 492, 498: 92 Pac. 1088, 1091).
With this modification of our former opinion, the petition for rehearing should be denied.
Modified: Kehearing Denied.