Kincart v. Shambrook

128 P. 1003 | Or. | 1913

Opinion by

Mr. Chief Justice McBride.

1. While the question before us is not without difficulty, we do not think that the agreement is within the section of the statute quoted above. There was no agreement by plaintiffs to trade, or attempt to trade, Shambrook’s land for Roberts’ house. The plaintiffs had found in Roberts a prospective customer for their 480 acres of land, and Shambrook, learning that Roberts was disposed to trade for land in that vicinity, was willing to pay $850 if plaintiffs would forego their chances to make such a trade, and give him an opportunity to trade his land instead. He did not stipulate for any active effort on the part of plaintiffs further than to sell him their chances. They owed him no duty to even recommend the trade, and, if they did so, such action was voluntary on their part, and did not make them brokers or agents for Shambrook. Under the agreement, they had no authority to sell or trade, and the evidence indicates that beyond ceasing the:r efforts to trade their own property they did nothing except to introduce the parties and state Mr. Shambrook’s desires in the matter. It is possible, and even probable, that if they had declined Shambrook’s proposal, and had actively pressed the trade they were negotiating for the 480 acres, they might have succeeded in closing it. It was a prospect of some possible value, and they had a right to contract for compensation for relinquishing it. The original complaint filed in this action was introduced in evidence as an admission that plaintiffs had contracted to act as brokers for the defendant in consummating the trade, and such would seem to be its legal effect. The court in its instruction respecting this document used the following language::

“As I stated to you, there has been introduced the original complaint of the plaintiffs, and you have a right to consider what was said in that complaint for the purpose of determining what the real facts are in the case; also, any explanation that may have been given as to the statement contained in the complaint, as to determining whether or not the facts are as alleged in their complaint, or whether this was an engagement as real estate brokers and endeavoring_ to collect a commission. As I stated to you, a commission cannot be collected if that was the agreement between the parties, as that agreement would have to be in writing, and it is not claimed that it was.”

There was a general exception taken to this instruction, and it is now claimed that it was error to submit to the jury the construction of the complaint, but that the court should have construed it, and stated to the jury its legal effect.

2, 3. The original complaint introduced had been superseded by an amended complaint, and was therefore no longer a pleading in the case. It was introduced just as plaintiffs’ letters were introduced, merely as containing admissions contrary to plaintiffs’ present contentions; and while it was the duty of the court to construe pleadings, deeds, and contracts, and to state their legal effect, we do not think that such duty extends to the construction of documents introduced merely as admissions against interest where no request is made for such construction.

4. The instruction was good so far as it went, and while the court, if requested, might have gone farther and told the jury that the complaint, taken as a whole, amounted to an admission that plaintiffs were acting as brokers for defendant when the trade was consummated, we think that there was no error in its failing to do so under the circumstances. The exception to the charge was general, and did not notify the court that the counsel desired further instructions construing the document, and, the instruction being correct in point of law so far as it went, the objection taken cannot avail the defendant.

The judgment is affirmed. Affirmed.