47 P. 920 | Or. | 1897
Opinion by
The defendant, after denying the material allegations of the first cause of action, sets out copies of the several contracts hereinbefore mentioned, and alleges that it was the duty of the plaintiffs to collect the money as it became due from Mrs. Stevenson under her contract, but that they neglected or were unable to do so after November 3, 1892, after which time she made no payment or offer of payment thereon, and that on July 24, 1893, defendant exercised the option contained in the contract, and that the cancellation was made with the full knowledge and consent of Holbrook as the representative of the plaintiffs. The answers to the other causes of action are, in effect, the same as the foregoing. The reply having put in issue the allegations of new matter contained in the answer, a trial was had before the court, at which the defendant, after the plaintiffs had introduced their evidence and rested, moved the court for a judgment of non-suit, but the motion was overruled, and the court found the facts in substance as hereinbefore set forth, and gave judgment for the plaintiffs in the amount demanded, from which the defendant appeals. Within ten days from the time this appeal was perfected, the plaintiff Riggen obtained an order of the court for leave to issue execution to enforce the payment of the judgment, notwithstanding the appeal,
Counsel for the company contend that their client, in the agreements entered into with the plaintiffs, reserved the right to declare a forfeiture of any contract of purchase for the mere non-payment of any installment due thereon, and to order a resale of the premises affected thereby, and in case of such declaration of forfeiture it was also understood that plaintiff’s right to any unpaid commissions thereon should be forfeited; that, the resales of lots having been made after the dissolution of the co-partnership, the firm of Riggen & Holbrook have no interest in any commissions claimed on account of such resales; that the court erred in its refusal to grant a judgment of non-suit, and that the findings of fact do not support the judgment, for which reason it should be reversed; while counsel for the plaintiffs maintain that the written agreement of the defendant to convey any of the lots in Irvington Park transferred to the obligee an equitable estate in the premises, the surrender of which, upon a declaration of forfeiture thereof, was tantamount to a settlement of an existing obligation, and amounted to a substituted payment of the debt due under the contract of purchase, which at once entitled the plaintiffs to their commissions. The question involved renders an examination and construction of the contracts entered into between the parties necessary. The first contained the following provisions: “In case lots are sold on time, in pursuance of this agreement, it is agreed that said lots may be sold on installments of not less than five dollars
This being so, the question is presented whether the plaintiffs, under their contracts with the defendant, are bound by such forfeiture and cancellation. The rule is well settled that a real estate broker, in the absence of any agreement to the contrary, has earned his commission when he effects an actual sale, or produces a purchaser who is ready, able, and willing to purchase upon the terms indicated by the principal: Fisk v. Henarie, 13 Or. 156 (9 Pac. 322); Kyle v. Rippey, 20 Or. 446 (26 Pac. 308); Booth v. Moody, 30 Or. (46 Pac. 884). But here the rule is varied by the agreement that on the sale of a lot upon credit, the plaintiffs should retain as their com mission the first two installments not exceeding $10, and one-half of each installment thereafter until their compensation was fully paid. Under this clause, it must
Counsel for plaintiffs cite and rely upon the case of Bush v. Abraham, 25 Or. 336 (35 Pac. 1066), in support of the theory that the surrender by the purchaser of his right under an agreement to convey reinvested the defendant with the equitable estate in the premises, and, being a substituted payment, amounted to a settlement by the purchaser of the obligation, and at once rendered the commissions on account of such sale due and payable, notwithstanding the forfeiture. The rule announced in that case cannot, in our judgment, have any application to the case at bar, for the reason that the parties stipulated, impliedly, for the forfeiture, and also that the commissions were not to be paid except as they were collected from the purchasers. It is true the parties did not in direct terms stipulate that the defendant should have the right to declare a forfeiture of any of the contracts of purchase, or that, upon a declaration of sucia forfeiture, their commissions on account of the sale should also be forfeited; but, having agreed to take another commission on account of a resale of the lots declared forfeited, we think it is inferred from a fair construction of their contracts that they agreed to these terms; and, as the forfeitures complained of were declared by the defendant after Riggen had assigned his interest to Holbrook & Williams, neither he nor the firm of which he was a member had any interest in the commissions thereafter earned on account of the sales or resales of any of this property; and, this being so, the findings of fact, do not support the judgment, and the court erred in its refusal to grant a judgment of non-suit, for which reasons the judgment is reversed, and the cause will be remanded with instructions to dismiss the action.
The judgment being erroneous, the order allowing the
Reversed.