Plаintiff brought this action to recover a commission on the sale of certain real property owned by the defendants. The contract of listing is evidenced by а card'. It is partly printed and partly written.
“Number of Acres: 92 Section......Township 44, Range ....County, Spokane, Distance to Railroad......Nearest*213 Town 5 miles N. E. Colbert. Acres Cultivated 84, Suitable for Cultivation 84. Timber 8. Orchard 29.22 bearing, commercial, 7 R. B. and Wag. for home use. Small fruit...... Timothy land......Water, Well, abundance of water, piped to orchard, in house and barn, wind-mill and storage tank. House (Describe) 6-room modern. Outbuildings, Large barn & 2 packing houses, and chicken house & Machinery go with place. Fences Yes. Distance to school, 3-4 mile. Church ......Remarks. On Rural Route, Telephone All good land. Will sell 42, which includes bearing orchard and buildings at $12,000.”
“Mortgage $2300 When due 1914, 1000. Bal. 1915 Rate of Interest 7% To be assumed. . . .Price $20,000 Net..... Commission 5% Terms......Will trade for. .Will take city property to 3500 as part payment, and take % of crop each year, purchaser to pay int. Owner......Address: Mrs. W. L. Rogers, Colbert, R. R. No. 1. Date of Entry July 13th, 1912.”
The writing is nоt signed, there is no promise to pay a commission nor is the land described.
Plaintiff thereafter interested a customer who was willing to buy, and the parties thereupоn drew up and signed a contract of sale. No mention of the payment of a commission is made in this contract. Some dispute arose as to the terms of the latter contract, defendants insisting that plaintiff had imposed upon them when reducing it to writing. In consequence thereof, they repudiated the contract and sold the property to a third party. Plaintiff brought this action, and from a judgment in his favor, defendants have appealed.
The original memorandum is not set out in the comрlaint, but what purports to be its legal effect is fully pleaded. Plaintiff alleges that the contract was in writing. The land is described in the complaint by proper legal description, and it is alleged that defendants promised in writing to pay a commission of five per cent upon the sale price in the event and in consideration of plaintiff finding a buyer for the land. After making further recitation of the history of the transaction, plaintiff pleads the second contract and undertakes to
“That at the time of signing and delivery of said contract of sale said listing contract was modified by defеndants and each of them then and there orally ratifying said listing agreement for 5% commission, and by said defendant and each of them orally agreeing to pay plaintiff a commission of upon the $4,200.”
The original contract falls squarely within the statute of frauds. This has been so long settled that we will not discuss it further than to cite the authorities. Swartswood, v. Naslin, 57 Wash. 287,.
“The seсond writing is not a mere modification of the original contract so as to permit a recovery upon that theory. It is a complete independent cоntract, certain in all its terms, except the amount of the commission to be paid: . Resort must be had to parol testimony to ascertain the amount agreed upon. Nor would the offer of the original contract prove anything without resort to oral evidence to bring it within the issues tendered by the complaint.”
Respondent insists, however, that, inasmuch as the defendants made a general denial and did not affirmatively plead the statute of frauds, that they have waived that defense and must be held to pay the judgment rendered in the court below. They cite and rely upon the case of Moses Land Scrip Realty Co. v. Stack-Gibbs Lum. Co.,
*216 “We are at a loss to understand how a party can be called upon to plead the statute of frauds to a parol contract for the conveyance of land, when he is not charged with having made such a contract. It could hardly be required of him to anticipate that the other party would prоve a parol contract, when it is alleged that the existing contract was reduced to writing by the deliberate acts of the parties. It will be time enough for him to рlead the statute of frauds for his defense when it is alleged against him that he has made a contract that comes within the purview of that statute.”
This is especially sо where, as in our state, the statute of frauds is unlike the statute of England, 29 Car. II, and statutes patterned thereafter. With us, such contracts are void and not merely voidable.
In Popp v. Swanke,
In Force v. Dutcher, 18 N. J. Eq. 401, the complaint was sufficient if sustained by proof to carry the transaction over the statute. The statute was not pleаded in bar or set up as a defense in the answer. It was held that “no plea of the statute of frauds is necessary to bar such relief under the general prayer.”
In Taylor v. Howard,
The reasoning that sustains this doctrine is simple. A valid contract is alleged and is denied. If the proof is legally insufficient to sustain the allеgations of the complaint, the defendants may, as in all other cases, object fco the incompetent testimony. In the instant case, the writing offered to
That an objection made upon the trial, where thе vice of the contract is first disclosed by an offer of evidence, is intimated in the Moses Land etc. Co. case where, after noting that the statute had not been plead, the cоurt says:
“Nor does the record affirmatively show that any such defense was urged upon the trial.”
This goes beyond the true rule and should not be followed. The objection tо the introduction of the writing, it appearing to be insufficient, should have been sustained; or, it having been admitted, the motion of the defendants for judgment at the close of plaintiff’s case should have been granted.
On account of these errors, the judgment is reversed, and the cause will be remanded with instructions to dismiss.
Crow, C. J., Mount, Parker, and Gose, JJ., concur.