168 P. 927 | Or. | 1917
Lead Opinion
delivered the opinion of the court.
The chief thing to be determined is whether the papers offered by the plaintiff as proof of its allegation of its hiring as a real estate broker by the defendant were sufficient within the statute of frauds of this state. There are other questions urged relating to the
According to the findings, the plaintiff wrote to the defendant November 25, 1913, suggesting that it was in a position to obtain a purchaser for the realty mentioned and desiring to know what commission he would pay in event of a sale and upon what terms he wished to dispose of the property. This letter was not answered and subsequently the plaintiff wrote another communication, the contents of which were not disclosed as it was not produced. The bill of exceptions discloses the following correspondence between the parties:
“Portland, Ore., December 18,1913.
“Great Western Land Co.,
“Eugene, Oregon.
“Gentlemen: Your favor of December First at hand and, in answer to the same, beg to state that, if you have a purchaser for my Round Prairie tract of- land, consisting of thirty-five hundred eighty-two (3582) acres, I will make the price Fifteen Dollars ($15) per acre net to me. This is a bed rock price and will only* be offered at that price for a short time. If, in case you have an interested party, I will give you a reasonable time in which to close the deal, but would not care to give any extended option at this time. This place sold for Fifty-four Thousand ($54000.00) six years ago, and since that time, farm lands have more than doubled in value in our county. My terms would be one half cash, and balance on three or five years’ time, at eight per cent. These terms might be changed a little to suit purchaser, but any amount left standing on the place would have to bear eight per cent interest.
“Very respectfully yours,
“F. B. Waite,
“Sutherlin, Oregon.”
*491 “December 20, 1913.
“F. B. Waite,
“Sutberlin, Oregon.
“Dear Sir: Replying to your favor of the 18th inst. and thanking you for your kind offer, on the basis of which we are now endeavoring to negotiate a deal for your property, we will say that it is possible that our client may not be able to pay one half cash at this time, but we believe that such a substantial payment will be made that the balances would be amply secured. We are co-operating with some other people in the matter of handling this deal and naturally will endeavor to make as much profit out of the transaction as possible, and will expect you to protect us in the matter of difference between the net price and the quotations to be made to the purchaser; we understand this is in the neighborhood of $20.00 an acre, although it may be considerably less before the deal is finally consummated. We feel that you are entitled to know the details of the transaction and shall be pleased to keep you informed as to our progress in the matter. Again thanking you for your favor and trusting that we may be able to be of service to you, we beg to remain,
“Yours respectfully,
“Great Western Land Co., Inc.,
“By-, President.
“OSH-H.”
In addition thereto the instrument in writing here set out signed by the defendant was identified and introduced :
“Sutherlin, Oregon, Jan. 6, 1914.
“I hereby agree to protect you, the Great Western Land Co., of Eugene, in the sale of 3582 acres Round Prairie to Reverend Doering or associates. The price shall be not less than $16.50 to the Rev. Doering and $15 net to me subject to change only under agreement to you.
“F. B. Waite.”
So far as relates to the present contention, Section 808, L. O. L., reads thus:
*492 “In the following cases the agreement is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing or secondary evidence of its contents, in the cases prescribed by law; # # 8. An agreement entered into subsequent to the taking effect of this act, authorizing or employing an agent or broker to sell or purchase real estate for compensation or commission.”
The crux of the situation is in the effect of the writing of January 6, 1914, above quoted. Even in that there is no language whatever that can be construed as a hiring of the plaintiff, yet this is the very thing which the pleading put in issue and in support of which proof was required. Again, although the defendant agrees to “protect” the plaintiff, whatever that may mean, there is no consideration expressed in the document even for that covenant. There may be a mone
Reversed "With Directions. Rehearing Denied.
Rehearing
Rehearing denied February 26, 1918.
On Petition for Rehearing. Petition Overruled.
Department 1.
delivered the opinion of the court. •
1.
“Nov. 25,1913.
“Mr. Waite,
“Sutherlin, Oreg.
“Dear Sir:
“We understand that you are the owner of a large tract of land at Round Prairie and that the same has been submitted on the basis of $20.00 an acre. We believe that we are in a position to successfully submit this property and would like to have your authorization to submit the same and giving us the very lowest cash price on the property, also stating what commissions you would pay in the event of sale; also stating whether you would consider good income city trade for part or all of the property.
“We have some clients interested in a proposition of this kind and your immediate attention to this will be highly appreciated as our parties are waiting for an answer from us.
‘ ‘ Thanking you for your immediate attention to this, we beg to remain, Yours truly.
“Great Western Land Co., Inc.
“By-, President.”
2.
As shown by the oral testimony to which allusion has been made all that the missing letter amounted to was a request from the plaintiff to Waite asking for an answer to the letter above quoted dated November 25, 1913.
3.
“December 18, 1913.
“Great Western Land Co.,
“Eugene, Oregon.
‘ ‘ Gentlemen:
“Your favor of December First at hand and, in answer to the same, beg to state that, if you have a pur*496 chaser for my Round Prairie tract of land, consisting of thirty-five hundred eighty-two (3582) acres, I will make the price Fifteen Dollars ($15) per acre net to me. This is a bed rock price and will only be offered at that price for a short time.
“If, in case you have an interested party, I will give you a reasonable time in which to close the deal, but would not care to give any extended option at this time.
“This place sold for Fifty-four Thousand ($54,000) six years ago, and since that time, farm lands have more than doubled in value in our county.
“My terms would be one half cash, and balance on three or five years’ time, at eight per cent. These terms might be changed a little to suit purchaser, but any amount left standing on the place would have to bear eight per cent interest.
“Very respectfully yours,
“F. B. Waite, “Sutherlin, Oregon.”
4.
“December 20, 1913.
“F. B. Waite,
“Sutherlin, Oregon.
“Dear Sir:
‘ ‘ Replying to your favor of the 18th inst. and thanking you for your kind offer, on the basis of which we are now endeavoring to negotiate a deal for your property, we will say that it is possible that our client may not be able to pay one half cash at this time, but we believe that such a substantial payment will be made that the balances would be amply secured.
“We are co-operating with some other people in the matter of handling this deal and naturally will endeavor to make as much profit out of the transaction as possible, and will expect you to protect us in the matter of difference between the net price and the quotations to be made to the purchaser; we understand this is in the neighborhood of $20.00 an acre, altho it may be considerably less before the deal is finally consummated. We feel that you are entitled to know the*497 details of the transaction and shall be pleased to keep you informed as to our progress in the matter.
“Again thanking you for your favor and trusting that we may be able to be of service to you, we beg to remain, Tours truly,
“Great Western Land Co., Inc.
“By-, President.”
5.
“Marshfield, Ore., Jan. 2,1914.
“Great Western Land Co.,
“Eugene, Ore.
“Will be here Chandler Hotel until further notice.
“F. B. Waite.”
(Telegram.)
6.
“Sutherlin, Ore., Jan. 6, 1914.
“I hereby agree to protect you ‘The Great Western Land Co.,’ of Eugene in the sale of 3582 acres Round Prairie to Rev. Doering or associates. The price shall be not less than ‡16.50 to the Rev. Doering and $15.00 net to me. Subject to change only under agreement with you.
“F. B. Waite.”
7.
“Eugene, Ore., Jan. 6, 1914.
“F. B. Waite,
“Sutherlin, Ore.
‘ ‘ Out of our commission of one dollar and fifty cents per acre we will stand as a part payment for getting immediate possession Round Prairie Farm one thousand dollars one half commission payable when first payment of ten thousand dollars is made balance of commission payable out of second payment.
“Great Western Land Co.”
(Telegram.)
The missing letter is negligible and the omission to consider testimony about it furnishes no ground for rehearing because it adds nothing to terms or condi
“I will give you a reasonable time in which to close the deal, but would not care to give any extended option at this time. ’ ’
Thus far we have no acceptance by the plaintiff of whatever offer may be framed upon the defendant’s letters. In the next letter of December 20, 1913, the plaintiff fails to accept the condition imposed by the defendant for payment by the purchaser of half cash and balance on three or five years’ time at eight per cent, saying
“that it is possible that our client may not be able to pay one-half cash at this time, but we believe that such a substantial payment will be made that the balance would be amply secured.”
Eemembering that the statute says, “Evidence, therefore, of the agreement shall not be received other than the writing or secondary evidence of its contents,” it becomes our duty to construe the quoted documents and determine whether in effect they amount to a contract of hiring as alleged in the complaint. The rule is as stated by Mr. Justice McBride in Henry v. Harker, 61 Or. 276, 290 (118 Pac. 205, 122 Pac. 298):
“But when, as in this case, the contract consists wholly of a writing or series of writings all admitted to be genuine, and containing no technical terms, the construction of the writings becomes a matter of pure law for the court: Hutchison v. Bowler, 5 M. & W. 535; Goddard v. Foster, 17 Wall. (U. S.) 123 (21 L. Ed. 589.)”
Looking at the whole case made by the correspondence to which the statute restricts us as a matter of
Moreover, as we have shown, the plaintiff approached the defendant in the character of a buying broker and agent acting and proposing to act for another party not disclosed. There is nothing in the writings on either side showing that the defendant ever assented to any change of front on the part of the plaintiff. The writing of January 6, 1914, signed by the defendant at Sutherlin is consistent only with the role assumed by the plaintiff of representing some one other than the defendant. It may be likened to the telegrams involved in the case of Beymer Bauman Lead Co. v. Haynes, 81 Me. 27 (16 Atl. 326). It seems that the plaintiff there was a wholesale dealer in paint materials and was represented by traveling salesmen. The defendants were retailers and telegraphed the plaintiff thus:
“Will you protect and guarantee us on lead until your agent gets here? We are offered inducements.”
The plaintiff answered: “Yes.” The court construing the word “protect” said:
“We are satisfied that the meaning of the expression was that the plaintiff would sell as low as the most favorable market price at the time.”
In the light of that precedent the writing under immediate consideration is properly construed only as an agreement by Waite not to sell the land for less than $16.50 per acre, leaving the plaintiff to get as much as it could from its own client, the expected purchaser. The telegrams in the Maine case were not set down as an agreement to pay money; but were held to be a stipulation to maintain minimum prices on lead.
Again, in all this correspondence there is nothing expressing anything paid or promised or a condition to be performed by the plaintiff which induced the defendant to act or to sign any writing. We might almost take judicial notice that a real estate broker is always on the lookout for a commission from whatever source it may come. On the other hand, it is equally certain that the owner of land usually declines to pay a commission unless he has promised to do so. To that end the statute was framed requiring the agreement to be reduced to writing expressing the consideration and subscribed by the party to be charged. Giving to all these writings their utmost scope as in effect one instrument, there is no language in any of them amounting to an expression of the consideration even by “necessary implication as some of the courts have put it. ’ ’ Even the ‘ ‘ commission ’ ’ mentioned in plaintiff’s telegram of January 6,1914, may be the compensation to be paid by the purchaser who was the client of the plaintiff as stated in its letter beginning the correspondence. Going to the limit of construction favorable to the plaintiff in the direction of implication, it cannot be “necessarily implied” that the commission mentioned was to be paid by the defendant.
In the petition for rehearing the plaintiff has cited Bowman v. Wade, 54 Or. 347 (103 Pac. 72), claiming
Beyond all this also the court seems to have placed its decision upon the ground “that if it were held to be
In brief, if we view the writings as an instance of contract by offer and acceptance there is no situation disclosed where one party accepts precisely and exactly the offer of the other without proposing new terms. Further, the plaintiff having assumed the attitude of a buying broker seeking for an option it has shown nothing indicating a change of front and this does not prove the allegation that the defendant hired the plaintiff; and finally, there is no language in any of the writings, taken all together, which expresses anything to he done, promised or performed by the plaintiff which would serve as an inducement or consideration sufficient to satisfy the statute and charge the defendant. The petition for rehearing is overruled.
Reversed With Directions.
Rehearing Overruled.
Concurrence Opinion
delivered the following opinion, concurring specially:
The writings suggest that the Great Western Land Company might have occupied any one of three possible positions: (1) As a purchasing broker for its “client” H. E. Doering; (2) as an optionee, if such a term is permissible, holding an option with a limitation upon the price to be quoted by him; or (3) as a selling broker for Waite. If Waite did no more than to offer to deal with the plaintiff as a purchasing broker or as an optionee, it would avail the Great Western Land Company nothing if it did not accept such offer. If the plaintiff offered to deal with Waite as his selling broker that offer could not benefit the plaintiff if Waite did not accept it. The complaint alleges that the plaintiff was authorized and employed to act as a selling broker for Waite and hence by its pleading the plaintiff admits that it did not accept any offer that Waite may have made to deal with the plaintiff as a purchasing broker for its “clients” or as the holder of an option. If the plaintiff recovers at all it can only recover by showing that, as a result of an offer by one and an acceptance of that offer by the other, it was authorized and employed to act as a selling broker for Waite. If the writings signed by Waite disclose nothing but offers to treat with the plaintiff as a purchasing broker for its “clients” or as the holder of an option the plaintiff cannot prevail, for Waite is “the party to be charged.” Looking at the writings signed by Waite it will be seen that every instrument signed by him proceeds upon the theory that he is dealing with or offering to deal with the Great Western Land Company as a purchasing broker for its “clients” or as the holder of an option. Waite never at any time agreed to pay a commission. The
It must be remembered tbat tbe plaintiff must produce a writing or writings containing tbe essential terms of the contract expressed with such a degree of certainty tbat it may be understood without recourse to parol evidence to show the intention of tbe parties: Browne on St. of Frauds (5 ed.),§371; 20 Cyc. 258; and the writing or writings relied upon by tbe plaintiff must tend to prove and not disprove tbe existence of an agreement between tbe parties authorizing or employing tbe Great Western Land Company to sell Waite’s land for him for a commission: Browne on St. of Frauds (5 ed.), § 371a; Catterlin v. Bush, 39 Or. 496, 501 (59 Pac. 706, 65 Pac. 1064). Giving tbe writings signed by tbe plaintiff a meaning most favorable to tbe plaintiff and then examining tbe writings signed by the defendant it cannot be said tbat tbe parties, at any time made an agreement authorizing or employing tbe plaintiff to sell tbe land for a commission or compensation to be paid by Waite. Tbe defendant is tbe party to be charged and tbe essential terms of the agreement must be in writing signed by him; and while it is true tbat tbe statute is satisfied by letters and telegrams it is also true tbat the requirements of tbe statute are not fulfilled if tbe letters and telegrams amount to nothing more than offers and unaccepted counter offers.
Tbe promise sued upon is tbe alleged promise of Waite to pay a commission for finding a purchaser. It is not claimed tbat the plaintiff paid anything or