71 Wash. 425 | Wash. | 1912
This is an action to recover compensation claimed by the plaintiffs to be due them as commission upon a sale of the defendant’s cafe, for which they found and produced a purchaser, in pursuance of an agency contract existing between them and the defendant. The cause was tried by the court without a jury, resulting in findings and judgment in favor of the plaintiffs, from which the defendant has appealed.
In December, 1910, and for some time prior theretoj respondents were engaged in selling property, both real and
Counsel for appellant first contend that the trial court erred in finding that the contract was not one authorizing respondents to find a purchaser for its cafe, but that it was one authorizing respondents'to find for it wheat land in British Columbia or Washington, with a view to paying for such land by exchanging the cafe therefor; and they argue that respondents cannot recover any commission because the contract was not in writing, as required by Rem. & Bal. Code, § 5289, providing that an agreement authorizing or employing an agent to sell or purchase real estate for compensation must be in writing. It appears from the testimony that, when the agency contract was made, appellant fixed the price of its cafe at $30,000, and informed respondents that it would exchange the cafe for land of equal value, and would, if necessary, pay $10,000 or $15,000 in addition, if a tract of land acceptable to it of that additional value should be offered in exchange. It is also a fair inference from the testimony that appellant would accept $30,000 in cash for the cafe, though
It is next contended that the trial court erred in finding that respondents found and produced a purchaser who was ready and willing to purchase the cafe, and who did purchase it as the result of respondents’ efforts. This also presents a question resting upon testimony in which there is practically no conflict. About December 1, respondents found and produced a Mr. Corkery, who owned a ranch of about 15,000' acres lying partly in Umatilla county, Oregon, and partly in Walla Walla county, Washington, which he valued at $30,000, and which he was willing to exchange at that price for property of equal value in Seattle. The parties were brought together by respondents, and each inspected the property of the other about the 1st or 2nd of December, and very soon thereafter arrived at a tentative agreement for the exchange of their respective properties, each at an agreed value of $30,000. Mr. Corkery then informed appellant and respondents that it was necessary that he raise about $5,000, in order to pay off his debts in Eastern Washington before leaving there and coming to Seattle, and gave them to under
“If, at the time of the revocation, the agent should have a pending treaty with a proposing purchaser, who afterwards, by a continuance of the same negotiations with the principal himself, actually buys the property, the agent would have fully earned his commission, since the principal in such a transaction cannot arbitrarily cut off the agent’s authority, in the midst of what would be a successful agency, and then,*429 although himself taking advantage of the agent’s services, refuse him compensation.”
Nor does the fact that the sale may have been consummated upon negotiations directly between appellant and Mr. Corkery, upon somewhat different terms from those originally contemplated, affect the right of respondents to commission, in view of the facts we have noted. Barnes v. German Sav. & Loan, Soc., 21 Wash. 448, 58 Pac. 569; Norris v. Byrne, 38 Wash. 592, 80 Pac. 808; Elmendorf v. Steel, 70 Wash. 38, 126 Pac. 52; 19 Cyc. 249.
Counsel for appellant rely upon our decision in Frink v. Gilbert, 53 Wash. 392, 101 Pac. 1088. That case, however, we think is distinguishable from this, in that there the original negotiations initiated upon the production of the prospective purchaser by the agent entirely ceased and were abandoned, and soon thereafter independent negotiations were instituted between the same prospective purchaser and the seller at the instance of another agent. Plainly the production of the prospective purchaser by the first agent was not the procuring cause of the sale, and he therefore could not recover commission therefor.
We conclude that the learned trial court properly disposed of the rights of the parties, and that its judgment should be affirmed. It is so ordered.
Mount, C. J., Chadwick, and Gaow, JJ., concur.