*1 provable dependency loss, do in the absence of not, damages justifying contemplate child’s to a allowance recovery they by creditors heirs, collateral nor do authorize preexisting In the not incurred. absence debts dependency, proved preponderance evidence, punitive me and absurd to assess seems to to be both damages jury might say the child defendants whatever money would, lived, she accumulate in had during expectancy. a normal life respects except
I in all would, therefore, affirm award estate, to the I reverse. which would 19, 1972.] 42255. En Banc. October
[No. Respondents. Petitioner, al., v. Harold Erwin et House, Jim Kelly petitioner. Hancock, for respondents. Hancock,
John
34'6 J. The Courtof held a estate bro Neill, commonly “listing” employment contract, as a ker’s known agreement, inadequacy of reason of the unenforceable description. App. Erwin, House v. the real estate Wn. *2 (1971). reaching of 490 883 In that result the Court P.2d (80 granted Appeals reversed the trial court. We review 1004). herein such of the facts as Wn.2d We reiterate by necessary brought peti here the are to frame the issue tion for review. peti- respondent of
Plaintiff, in the Court Okanogan real estate here, tioner is licensed broker County. February 24, 1969, Harold Erwin On defendants listing agreement signed a and Chris E. Albrecht printed plaintiff. form is a standard including containing spaces, property farm ranch blank legal description. spaces for the of But for insertion signatures, on the contract were defendants’ all blanks property by plaintiff broker. The filled listing agreement portion of the states: Description: Ranch acres, 534 known as Albrecht-Erwin Legal to attached. Sec. farm or ranch described County ............M., of Oka- of T...........N/S, ............ R...........E/W nogan, description see owner’s Wn.; State better part hereof. record, on made a title deed now por- figures (Underlined are the handwritten words purchasing tion.) farmlands were fact, In defendants no “title contract; so there was recorded real estate under a on record other a deed on There was deed” record. Okanogan County defendant Erwin. farmlands owned 19.36.010(5) must be of this nature contracts Under RCW charged. writing signed party There is a to be country requirement of a authority split as to the in this legal description sub- specific ject commission contract. real estate broker’s matter Description or Sufficiency, Frauds, Under Statute See Brokerage Property Contract, Designation in Real-Estate
347
(1970);
§
12 Am. Jur.
Brokers 46
30
935
2d
Annot, A.L.R.3d
(1964).
nearly
years,
cases,
in an
line of
For
60
unbroken
aligned
applying
Washington
states
has
with the
E.g.,
sufficiency
description.
of land
stricter rule as to the
(1967); Leo
Faulstich,
Heim
subjective judges. prior applied, conclusions of So the doc- properly subject trine has to criticism. properly impor- viewed,
But as the doctrine retains vital any legal system provide tance. A basic is function to may guide society. people rules their conduct in purpose, To this is fulfill it essential that the law be reason- ably predictable. respect, certain, consistent and In this stare important decisis an As serves and valid function. we ob- Stranger Creek, 649, 653, served In re 466 P.2d (1970): developed ac- is a courts to Stare decisis doctrine stability complish law, out the requisite in court-made element change. impediment to With- but absolute stabilizing doctrine, of this law could be- effect subject of current to incautious action or the whims come recognize judicial sta- But also holders office. we bility perpetuity. If the law should not be confused with must have and relevance, is to have a courts current change capacity reason so a rule of law when exert the compatible requires. The true doctrine of stare decisis is requires a function of the The doctrine with this courts. showing rule is incorrect clear that an established harmful before it abandoned. changing provided objection no a rule law
We have principle, are convinced that, consonant the above we existing and that rule is incorrect and harmful that the integrity less harmful alternative is available. The rightfully people legal system—and the basic function that prerequisites expect perform—demand these important change. especially in an These considerations are involving realty, there is where such as transactions area legal applicable certainty particular reliance *4 rules. suggestion foregoing mind, consider
With the we long-standing suffi- rule our that we overturn ciency subject in real estate broker’s matter employment contracts. existing in the no harm or undue inconvenience
We see involving contracts, we brokers’ real estate In cases rule. dealing unsophisticated or overreached are not party. success- Brokers in this state must licensed after be fully taking comprehensive examina- real estate brokers’ tion. regarding sufficiency
The rule this state description of the real in a broker’s contract has been firmly established for several decades, and is well known by every practically licensed broker. In all cases, the bro prepare legal kers the commission contract. If the detailed description is not available at time execution may provide contract, the broker subsequent simple its attachment—a matter. See Noah v. supra. stringent Montford, view, In our a less rule would open uncertainty, ambiguity disputes the door to in an particular impor area of endeavor where definiteness is of thereby contradicting purpose tance, for which section § was added to our statute of frauds. Laws of ch. 1,p. 19.36.010(5). 110;RCW Appeals
The Court reached the correct herein, result following long upon precedent. established and relied We existing are not convinced that the rule is incorrect and Accordingly, judgment harmful. of the trial court is reversed. C.J., Rosellini, con- JJ., Hamilton, Hale, Stafford,
cur. (dissenting)—This presents specific J. case Wright, question payment of whether a contract for of a commis- legal sion to a real estate broker must contain a full de- scription presents to be This sold. case also deeper question of whether a court should bound prior prior wrong. if decisions decisions are App. in House Erwin, Court 5 Wn. reversed the trial court and held granted Erwin, defendants. We House v. review.
1004. majority opinion. Possibly are set facts out in the understanding better will be aided some clarification *5 majority on “There a deed one matter. mentions was by Okanogan County farm lands record other owned county defendant The other owned Erwin.” by by possibly any one of the could not stretch defendants imagination herein, confusion and is not have caused litigation. relevant to this De-
Three trial in defense. matters were raised at the signed by listing agreement fendants the was not contended pres- Albrecht, E. Albrecht. She was Effie M. wife Chris signing, Further- ent at and at several conversations. telephone plaintiff on occasions. more, on the she talked to agreement. find- That The trial court she ratified the found challenged ing therefore, not before and, now was not the court. procur plaintiff also contended was
Defendants plaintiff ing The trial court found “the cause of the sale. procuring sale.” The Court cause was saying: is unneces “. . . matter, did not consider procuring plaintiff sary was for us decide whether finding court was based of the trial cause the sale.” firmly committed to the are on evidence and we substantial by finding be court will not of fact the trial rule that a Thorndike evidence. if based substantial disturbed Hesperian 570, 343 P.2d Orchards, Inc., (1959); Coy 462P.2d Raabe, relating of an the lack contention, third Defendants’ Ap- by description, Court adequate considered was court. peals matter now before and is the agreement” the ac- “listing is shown The contract or companying illustration. inadequate com- this
Defendants contend part: ply reads in 19.36.010,which with RCW section, void, following specified in this cases, In the unless promise shall agreement, contract or note promise, or some agreement, or contract by writing, signed thereof, be memorandum person there- charged some therewith, or party to be say: . lawfully authorized, that is him unto agent authorizing employing An purchase compensation or broker to sell or or a commission. enacted, purpose preventing
This statute was for the legislature fraud. The statute of frauds enacted Washington Territory p. § 1854, 2, in 1854, Laws of *6 (5) did not contain That subsection which is involved here. p. § 58, 1, was added Laws of ch. 110. by Finley, purpose of the enactment was well stated
J. in Miller v.
As we have can noted, there be little legislature tion as to the intent of the the enactment purpose RCW 19.36.010 and 64.04.010. The clear RCW preven- and intent is behind these statutes frauds the apply tion of fraud. To these statutes in such a manner as promote encourage and fraud would be to the defeat unambiguous legislature clear and enactment. intent the in their Clearly, sought prevented by the fraud to be RCW .36.010(5) disputes relates to as to the amount of commis- compensation, listing agreement, sion or the term of the if important, any exclusive or nonexclusive, and most if agreement scarcely all. existed at It seems conceivable for a dispute identity property to arise over the listed a with broker. Pray Anthony, App.
A better rule was stated in Cal. (1929), 772,777,274P. 1024 wherein it said: was uniformly As held numerous decisions in this state upon subject, part to em- essential a contract ploy a real broker, so far as is the statute frauds employment concerned, is the matter of the conse- quently specifically, need not land if the describe the employment terms of the can be made definite it. without Agency, interesting An even more case Central is Idaho (1968), Inc. v. Turner, 92 Idaho exactly printed involved a contract on the same blank as is just Washington, long Idaho, involved herein. had line holding perfect description property of cases was employment. to a real contract of essential estate broker’s overruled several cases inconsistent The Idaho court Agency stating page the Central at 311: Idaho case employing purchaser A find a of real contract broker to property, convey, or sell, a contract to encumber is not any property purely It a con- interest therein. performed employment tract broker for for services to be paid the occurrence to be a commission specified Ordinarily a contract of certain events. conveyance compel support an action would property present not seek involved. The does action recovery brought solely such commission was for relief. It provided agreement. case In such a agreement description it is is sufficient where the shown that misunderstanding there no between property property as to the to be owner the broker to enable the sale, it is sufficient offered where point property, its it, out show and broker to locate purchaser. prospective In case to the this boundaries both plaintiff from the and defendant knew be sold .to contained farm.” The farm was well the entire “Clara Turner was *7 acreage neighborhood. exact and loca- Its known readily county was availa- as to and section numbers tion ble and could be established evidence
by parol or extrinsic other subtracting adding varying, to, or from without parties agreement make. intended to Such which the apply har- land in would evidence parties. mony manifest intention with the brokerage description conclude that We pur- for the involved herein was sufficient poses of this action. employment A need con- real estate broker’s contract complete legal description being tain a requirements satisfy in order of the statute listed 19.36.010(5), clearly frauds, ECW if the contract under- language requires standable. The of the statute “such agreement, promise, or some note or memoran- contract or writing writing, [to] dum be in .”. The thereof, requirement of the statute. herein satisfied the they following To the extent are in herewith, conflict cases, herewith, all other cases in conflict should be
353
Cushing
specifically
Co.,
Timber
75
v. Monarch
overruled:
English,
(1913); Thompson v.
76
P.
678, 135
660
Wash.
Roy,
(1913);
142
261,
664
Salin v.
81 Wash.
23, 135P.
Wash.
(1914);
Valentine,
323,
In order to avoid wish construing absolutely dealing to make it clear I am with and provision the real broker’s commission contained 19.36.010(5) requirements of RCW and not with other statute statutes. judg-
The Court should reversed and superior ment court reinstated. should be Wright, J. JJ., Utter, Hunter concur with (dissenting)—In saga- 1897, Justice J. Holmes Finley, ciously observed: revolting for a rule of law It is than to have no better reason Henry It so it was laid down in the time of IV. revolting grounds upon
is still more laid down have vanished if which it was simply long since, rule and the persists past. from blind imitation of the *8 Path Holmes, O. The L. Rev. Law, Harv. of majority opinion, anticipating The whether some dissent thoughts lip not, or does render service to brief by operating principle posed the statement Justice though suddenly then, Holmes. But as shocked at such an approach, by or disloyalty stricken some sense of or com- pelling necessity majority as to stare decisis, the turns to the doctrine in an endurable and unshakable embrace. majority certainly
The any strong does not demonstrate compelling degree reason for this 180 retreat to a stare giving lip decisis rationale. switch from service to the juristic principle emphasized by Holmes an antithetic application of stare decisis in this case seems to me dictated more thinking habit and rather sterile, automatic than responsible reasoning. critical, careful and Contrariwise, reasonably applicable Holmes statement seems to me provides persuasive the case before us for it basis for reaching a better-reasoned, more rational resolution problem involved than was reached this court in a num- previous ber of cases. The statute involved, 19.36.010, ROW my judgment wrongly was in construed soon after its en- wrong unnecessarily actment, and this construction has blindly by years. been followed the court for a number requisites this, In the court has confused a real estate requirements precise legal commission contract with the descriptions in contracts or other documents the actual conveyance property. of title or an interest in real This type certainly latter of situation is not involved in the instant case. necessity property description of an exact in a con- convey
tract land arises from the fact that the land itself
subject
is at once the
and the most basic
element
agreement.
require
dealing
To
that a contract
with that
writing,
parol
land be in
and then to admit
evidence to
identify the land, would be inconsistent with the fraud
prevention purpose of
applied
statute
frauds. As
sale contracts,
land
the substance of statute
frauds
presence
writing
reliably
assumes that the
of a
will more
prove
conveyance
the transfer or
of an interest in land, as
quantum,
well
existence and location of the land
being
parol
sold, than will
the admission of
evidence.
Where a land sale contract is unclear in its
*9
identify
is to
parol
land
realty,
the
admit
evidence to
to
purpose
frauds.
the
the
statute
subvert
justification
requiring
comparable
a le
is
There
no
description
gally expert
precise
real
com
in a
and
question
the land in
contract. The identification of
mission
necessarily
subsidiary
crea
to, the
to,
is
relevant
and
brokerage relationship.
that
I am convinced
the
tion of
writing
requires
the exist
a
to show
19.36.010
RCW
relationship;
agreement
le
a
to
create such
ence of
unnecessary.
posi
gally
description
precise
of land is
This
obvious;
language
any
by
the
absence
tion is evidenced
property
requiring
legal
statute
within the
agreements.
brokerage
de
Rather, RCW 19.36.010
in such
pay
only writing
contract
the
to evince the
mands
Preston,
ment of a commission. Stewart v.
77 Wash.
87 P.
Wheeler,
Peirce v.
Wash.
Indeed, be found which questionable precedent may need not be harmful before it *10 long overruled, as overruling as no harm is created precedent. such In In re Estate Yand, 831, 23 Wn.2d of (1945), page P.2d 434 we stated at 837: long acquiesence may While in an erroneous decision practice make the decision a rule of or 'and raise dignity it to the law, it must not be understood that previous affecting property rights line of decisions even can in no case be overthrown. . . . clearly through
If a series incorrect, of decisions are conception inju- mistaken rule, of the statute or and no overruling rious results would follow from those deci- of the court to overrule those deci- duty sions, it is the
sions.
point
simply
to be made is
that the doctrine of stare
judicial
decisis is a
tool which should be wielded
just
render a
and reasoned result. Further
evidence
pliability
Washington authority
doctrine’s
the fact that
proposition
upon precedent
exists
that reliance
inappropriate
involving statutory
in
construction,
cases
Department
the instant case.
v.
See Windust
Labor
Indus.,
&
52 Wn.2d
precedent good is how it accords with sense or rea- far precedents, son; is, that the law should not be confined to as “the them, but consists the reason of reason is the law soul the law.”
(Italics mine.) Washington In standard accord with this leading jurists past are some of this nation’s both present. thoughts Similar substance to the earlier-stated of Justice Holmes, the observations of Justice Cardozo application precedent following: suggested are duly
I think rule, that when a after it has tested experience, sense has been found to with be inconsistent justice welfare, there should social be less hesitation in frank and full avowal abandonment. Cardozo, B. The Nature the Judicial Process 150 Pennsyl In like manner, Brandeis, Justice in Di Santo (1927), vania, 34, 42, U.S. 71 L. Ed. 47 Ct. 267 S. approach commented overzealousness judiciary to stare decisis: usually important It is more a rule of law be that right. settled, than But it be settled . doctrine of decisis err stare does not command that we again process through ... In the slow the search truth involving exclusion, of inclusion and trial *11 reject, guides, error, it behooves us to the decisions questions prove such which to have mistaken. “over-emphasize Douglas, noting easy Justice that it to (W. Doug- principle stare as a in men” decisis the lives of (1961)), Supreme las, The 123 Court: Views From Inside suggested following: (too healthy practice infrequently is, think,
It I a fol- lowed) lative Legis- for a court reexamine its own doctrine. judicial correction often difficult to errors is government responsible entail Moreover, should effect. department undoing wrongs in committed question. traditions. course is faithful to democratic That ready Respect if stands tribunal is increased only also to correct the errors of others but . not to confess its own. Douglas, 735, L. 746-47 Decisis, 49 Colum. Rev.
W. Stare Supreme (1949). has evi- Court While the United States judicial willingness a to utilize the doctrine as denced its 358 consistency predictability law, in our
tool to ensure
willingness
reject
suggest
comparable
a
several cases
may perpet-
precedent
it is realized that the doctrine
when
unjust ruling. See,
a
uate
statute’s misconstruction or an
e.g.,
Tompkins,
1118,58
64,
Erie R. Co. v.
304
82 L. Ed.
U.S.
century
(1938) (overruling
114
817,
S. Ct.
A.L.R. 1487
(16 Pet.)
precedent
Tyson,
1
in
v.
41
established
U.S.
Swift
(1842))
379,
Parrish,
and West Coast Hotel Co. v.
300 U.S.
(1937) (over-
L.
703,
578,
81 Ed.
57 S. Ct.
Our sister states no less diminishing Supreme point Court doctrine’s returns. period example, during 150-year from of Illinois for previous in 140 1818 to overruled 170 of its decisions overruling opinions, lapse original and with a time between varying period in one from a months decisions average period years another, of 110 in instance to being years. span Moran, than for all cases less See One Decisis an Era Judicial Activism: State's Stare (1969). Rev. 51 Answer, 1 U.Tol. L. position as one of
Our
court has earlier stated its
own
refusing
yield
to do
to the doctrine of stare decisis when
principle.
perpetuate
ex
error and sacrifice
State
so would
Savidge, 144
Lumber
Wash.
rel. Bloedel-Donovan
Mills
309, Steele,
97 Wash.
302,
It rule of stare decisis is not the it its use adherence blind stubborn the inclination to the time and excuse for not finding . old must be bad, changed, that rules decide Law, 273, Decisis, Ala. Hare, Jr., Hare & F. Stare F. 281-82 (1970). to the injustice appellant-broker
Because of the resulting and unwarranted rigid in this which inheres case I believe precedent, mistaken devotion to outmoded and error interpretation time to correct a persistent statutory provision and to cease to make this particular I means to it. concur means fraud rather than a prevent reached the dissent- and result entirely reasoning ing opinion J. Wright, J., concurs with J.
Utter, Finley, December 1972. granted Petition rehearing Banc. October 1972.] 42290. En [No.
Maymie Benefit Life A. Mollett, v. United Appellant, Company, Respondent.
Insurance