114 P. 638 | Or. | 1911
delivered the opinion of the court.
“I offer my land for sale at $18,000, and warrant that the merchantable timber thereon will scale at least 40,000,000 feet.”
Before he can be bound, either to the purchaser or to the broker, the latter must produce a buyer who in effect says: “I accept your offer and warranty, and will pay you $18,000 for your land.” The complaint does not disclose this situation. On the contrary, in substance, it puts into the mouth of the alleged purchaser furnished by plaintiff a statement like this:
“I have the money to pay, and I would like to buy your land, if it has on it that amount of timber; but I am
This is not an acceptance of the defendant’s offer. A prospective buyer occupying that attitude is not one ready to purchase, so as to charge defendant for plaintiff’s commission. The cause of the plaintiff is not aided by the averment of the complaint already quoted to the effect that the purchaser should have the privilege of examining and scaling the timber. That of itself operates to keep the negotiations open and allow the purchaser to withdraw at his option before incurring liability. If there had been a pre-existing executory contract for the sale of land on which the timber should be of a certain kind and quantity, the purchaser would be entitled to a reasonable time in which to inspect the property to see for himself if it complied with the contract. In this case, however, there is no pre-existing contract, and to insist on such an inspection before accepting the offer to sell does not amount to, but prevents, a perfect acceptance of the offer. Hence the purchaser insisting upon such a condition is not one ready, able, and willing to buy, so as to entitle the plaintiff, who produced him, to his commission. The opinion of this court in the case of Hardy v. Sheedy, 58 Or. 195 (113 Pac. 1133) is instructive on all branches of this case. There was error of the court in refusing a nonsuit.
The judgment is reversed, and the cause remanded for further proceedings. Reversed.