Henderson v. Lemke

119 P. 482 | Or. | 1911

Mr. Justice McBride

delivered the opinion of the court.

1. We are of the opinion that the contract is valid, and not in contravention to the statute of frauds. It amounted to an employment of the plaintiff to show the property which defendants owned, and practically stipulated that if he did so, and a sale on defendants’ terms followed that labor, then defendants were to pay a commission. Here the thing to be done by plaintiff is to show the property. If he does that, he has paid his price for the commissions. It is the consideration for the contract. It is not necessary that the consideration be stated in exact terms, if it can be made out clearly from the whole writing: Straight v. Wight, 60 Minn. 515 (63 N. W. 105); Union Bank v. Coster, 3 N. Y. 203 (53 Am. Dec. 280); Barney v. Forbes, 118 N. Y. 580 (23 N. E. 890); Laing v. Lee, 20 N. J. Law, 337; Marquand v. Hipper, 12 Wend. (N. Y.) 520.

2. The objection that the contract is void, because it does not state the sum which was to be paid for the property, is untenable. It was sufficient if a purchaser, who had been shown the property, presented himself, and was ready, able, and willing to purchase for any price that defendants saw fit to ask. The agreement does not limit defendants to any specific price; they had a perfect right under it to make the price $5,000 or $100,000; but if they did fix the price, and it was paid, or the purchaser was ready to pay it, they were liable under their promise.

3, 4. The argument that the memorandum is void, because it does not describe the property, is not tenable. This is not a contract for the sale of real property, but a contract for the services of a person to find a purchaser. It is immaterial what the description of the property is, if it can be identified; and, while the complaint is not so definite in this respect as it could have been made, we think, in the absence of a motion to make definite, it is sufficient: Baird v. Loescher, 9 Cal. App. 65 (98 Pac. 49); Sanchez v. Yorba, 8 Cal. App. 490 (97 Pac. 205).

The evil, which it was the object of this statute to remedy, was to put a stop to a once prevalent practice of real estate brokers of claiming commissions'. Here what both parties were to do clearly appears from the writing, “signed by the party to be charged.”

5. For the purposes of the motion to dismiss, every allegation of the complaint is taken to be true; and therefore we have a case presented in which defendants agreed, in writing, that, if plaintiff should perform a certain act, and a sale upon defendants’ terms resulted, defendants would pay plaintiff a specified commission; and that plaintiff performed his part of the contract to the letter. It is true that the statute of frauds ought to be enforced, even though the results may be harsh and inequitable; but courts ought not to give it a forced and farfetched construction where such interpretation will effect a fraud greater than that which the statute was designed to remedy.

We are of the opinion that upon a fair construction this contract does not contravene the law. The judgment is reversed, and a new trial ordered. Keversed.