59 Wash. 52 | Wash. | 1910
The respondent brought this action to recover $4,500 with interest. The case was tried to the court and a jury. A verdict was returned in favor of the plaintiff, and a judgment entered for the full amount of plaintiff’s claim. The defendant has appealed.
The facts are as follows: The appellant was a real estate agent. He was offering for sale as such agent a piece of real estate for $13,000. The plaintiff was well acquainted with
Appellant argues that no recovery can be had, because the contract was an oral contract respecting an interest in lands, and therefore void within the statute of frauds. Chamberlain v. Abrams, 36 Wash. 587, 79 Pac. 204, is relied upon to support this contention. That was a case where the defendant orally agreed to acquire the title to certain lands and convey them to the plaintiff. The contract there was clearly a contract for the purchase of lands within the statute, and for that reason we held that the plaintiff could not enforce the contract; and, because it was not enforceable, we held there could be no recovery for its breach. In the case at bar, the appellant was not a party to the sale of the land. He was the agent for the seller. The contract between the appellant and respondent was a collateral contract which did not affect the title or any interest in the land sold. The appellant simply agreed that, if the respondent would pur
In Little v. McCarter, 89 N. C. 233, the defendant orally agreed to pay plaintiff $100 if plaintiff would purchase a piece of land from a third party for $2,000. Plaintiff purchased the land, and in an action to recover the $100, it was held that the contract was not within the statute of frauds. In Wetherbee v. Potter, 99 Mass. 354, where two parties agreed to furnish the money' in equal shares and purchase land at the price of $50,000, one of the parties failed to furnish his share, and the other advanced the purchase price and brought an action to recover the share promised by the defendant, on a count for money paid. The court in that case said:
“The statute of frauds does not apply to such an action, whether brought upon the implied or an express agreement. The obligation to repay money advanced for the use of the defendant is independent of the character of the consideration upon which the advance is made, provided it be not illegal. And if an express promise to that effect be separable from the principal agreement to which it is incident, it may be enforced, although the principal agreement might be avoided. The fact that a certain stipulation is made at the same time, and forms a part of an agreement for the sale of an interest in land, does not prevent an action from being maintained upon it; provided, 1st, that the action does not tend to enforce the sale or purchase of the interest in land, and 2d, that, in other respects, the stipulation is susceptible of being separately enforced by action. Such stipulations, collateral to the sale, but contained in the same contract, have been repeatedly enforced in this commonwealth.”
We think, therefore, the judgment was right, and it is affirmed.
Rudkin, C. J., Crow, Parker, and Dunbar, JJ., concur.