184 P. 487 | Or. | 1919
££ Ultimate facts are, when considered with reference to the facts or evidence by which they are established*356 or proved, but the logical results of the proofs, or, in other words, mere conclusions of fact.”
It is sometimes difficult to distinguish between conclusions of fact and conclusions of law, because it may be that a statement of fact cannot be made without including a conclusion or it may be that a conclusion of law is such that, in the attending circumstances, it must be stated in the form of a statement of fact: 38 Cyc. 1979; Levins v. Rovegno, 71 Cal. 273 (12 Pac. 161); Clark v. Chicago etc. R. Co., 28 Minn. 69 (9 N. W. 75).
“The line of demarcation” as stated in Levins v. Rovegno, 71 Cal. 273, 275 (12 Pac. 161, 162), “between what are questions of fact and conclusions of law is not one easy to be drawn in all cases. It is quite easy to say that the ultimate facts are but the logical conclusions deduced from certain primary facts evidentiary in their character, and that conclusions of law are those presumptions or legal deductions which, the facts being given are drawn without further evidence. This does not, however, quite meet the difficulty. We deduce the ultimate fact from certain probative facts by a process of natural reasoning. We draw the inference or conclusion of law, by a process of artificial reasoning; but this last process is often in such exact accord with natural reason that the distinction is scarcely appreciable. .
“If ultimate facts were found only from direct evidence to the very fact, the distinction between them and conclusions of law would be easily drawn; but, as they are to a great extent presumed from the existence of other facts, they are conclusions reached by argument, by reason, — are results deduced from an inferential process, in which the evidentiary facts become the premises, and the ultimate fact the conclusion; and this process, by which ultimate facts or presumptions of fact are reached, differs from presumptions of law only in this, that the latter ‘are reduced to fixed rules, and constitute a branch of the particular system of jurisprudence to which they belong’; the former being*357 ‘merely natural presumptions,' are derived wholly and directly from the circumstances of the particular case, by the common experience of mankind, without aid or control of any rule of law whatever. ’ ’ ’
Although it may not be possible to frame a formula which, in all cases, will serve as an unfailing test by which to determine whether a given deduction states an ultimate fact or a conclusion of law still,
“it is, in many cases,” as said in Levins v. Rovegno, “the means by which the result is to be reached which must determine whether a given conclusion is one of fact or law. If, from the facts in evidence, the result can be reached by that process of natural reasoning adopted in the investigation of truth, it becomes an ultimate fact, to be found as such. If, on the other hand, resort must be had to the artificial processes of the law, in order to reach a final determination, the result is a conclusion of law”: See, also, Travelers’ Ins. Co. v. Hallauer, 131 Wis. 371 (111 N. W. 527).
In addition to the difficulty encountered in distinguishing between conclusions of law and ultimate facts it is also sometimes difficult to distinguish between inferential facts and ultimate facts; and because of this latter difficulty it has been suggested in one jurisdiction that in cases of doubt the only safe plan is to include all the facts in a special verdict on the theory that if it turns out that a given fact is only evidentiary no harm is done, but if such fact is ultimate, its presence is proper and its absence might be fatal: Louisville etc. Ry. Co. v. Miller, 141 Ind. 533, 549 (37 N. E. 343); Republic Iron Steel Co. v. Jones, 32 Ind. App. 189, 191 (69 N. E. 191).
It has been said that a fact in issue “is that upon which the plaintiff proceeds by his action, and which the defendant controverts in his pleadings”: Garwood v. Garwood, 29 Cal. 514; Glenn v. Savage, 14 Or. 567,
We now turn to the pleadings to ascertain what were the facts in issue. The complaint avers that the defendant owned the property upon which the brick building is located and that the plaintiff and defendant entered into an agreement under the terms of which the defendant agreed to pay plaintiff $750; that the plaintiff found a buyer “ready and willing to consummate an exchange thereof for other property upon such terms, conditions and for such price as should be agreed to by the defendant.” It is next alleged in the complaint that the plaintiff produced Claude D. Starr and that Starr and the defendant entered into a contract for the exchange of their respective properties, and that under the terms of the contract the Clackamas County lands were
“to be clear of all encumbrances. That in and by said contract it is further provided that the said Starr should pay defendant the further sum of $5,000 in cash, and said contract further provided that all rentals, interest and adjustments were to be made as of July 1st, 1916; that deeds conveying said properties from one to the other of said parties were to be good and sufficient warranty deeds conveying a fee simple title to the property conveyed free from all encumbrances except as in said contract mentioned, and that said deeds should be delivered, from one to the other of said parties within a reasonable time, and said contract further provided that abstracts or certificates of title were to be furnished by each party to the transaction to the other, covering their respective properties, and that a reasonable time should be allowed each party for the correction of any defects that might appear.”
The complaint continues by alleging in paragraph IV:
*359 ‘1 That at all times herein mentioned the said Claude D. Starr has been and is now the owner in fee simple of the properties described in paragraph III hereof agreed by him to be conveyed to the defendant, and the said Claude D. Starr has been at all times herein mentioned and is now ready and willing to convey said property and all thereof, subject only to the encumbrances in said contract mentioned, by good and sufficient warranty deed, as provided in said contract, and has been at all of said times, and is now ready and willing to pay defendant said sum of $5,000 in cash, and at all times herein mentioned and is now ready, and willing to consummate said transaction for the exchange of said properties in accordance with the terms of said contract.”
The answer admits that the terms of the contract between the plaintiff and Starr are as alleged in the complaint. The answer admits that Starr is willing to pay $5,000 but denies every other allegation in paragraph IV. In other words, the plaintiff says that Starr “has been and is now the owner in fee simple” of the Clackamas County lands, which according to the terms of the contract were to be “clear of all encumbrances ’ ’; but the defendant denies that Starr has been or is now the owner in fee simple of these lands.
The answer contains some affirmative matter. In substance the defendant says in its answer that Starr submitted abstracts but that they disclosed that he “did not have a merchantable title to any of the real property in Clackamas County”; that on July 19,1916, the defendant gave to Starr a complete statement of its objections to the title to the Clackamas County lands; that Starr made no attempt
“to correct any of objections made to the title as shown by the abstract which was submitted to this defendant, and that this defendant has never at any time or at all been given or tendered an abstract to the title*360 showing a merchantable title to the lands in Clackamas County, Oregon.”
The answer concluded by averring that on account of the failure of Starr to submit an abstract within a reasonable time “showing a fee-simple title to” the Clackamas County lands, the defendant notified Starr on September 6, 1916, that the contract was canceled ‘ ‘ on account of his inability to deliver to this defendant a merchantable title to the property in Clackamas County.”
Ownership may he pleaded as an ultimate fact and a fortiori ownership may be stated as an ultimate fact in a special verdict or in the findings of fact made by a trial judge. Whether a finding of ownership is a finding of fact or a conclusion of law may of course depend upon the issues to be tried. We think that the findings about the ownership of the Clackamas County lands are findings of an ultimate fact. The trial court intended that the finding about ownership should serve as a finding of fact. This intention is made clear by the circumstance that this finding appears among the findings of fact and the additional circumstance that there is an appropriate finding of nonoYmership among the conclusions of law. The record presented to us does not contain any evidence, if any there was, taken at the trial; but the controversy is presented upon the pleadings and the findings made by the trial judge. The record does not disclose any request made by the plaintiff for more detailed findings about the question
“the findings of fact * * were agreed to by plaintiff and its counsel to the effect that Starr did not have a marketable, fee-simple title to the Clackamas County lands.”
The following precedents support the holding that a finding of ownership may be the finding of an ultimate fact: Curtis v. Boquillas Land etc. Co., 9 Ariz. 62 (76 Pac. 612), 8 Ariz. 258 (71 Pac. 924); affirmed in 200 U. S. 96 (50 L. Ed. 388, 26 Sup. Ct. Rep. 192, see, also, Rose’s U. S. Notes); Savings & L. Soc. v. Burnett, 106 Cal. App. 106 (93 Pac. 900); Levins v. Rovegno, 71 Cal. 273 (12 Pac. 161); Ybarra v. Sylvany, 3 Cal. Unrep. Cas. 749 (31 Pac. 1114); Travelers Ins. Co. v. Hallauer, 131 Wis. 371 (111 N. W. 527).
There is another class of cases where the broker brings about the execution of a contract between his employer and a third person for the sale or exchange of lands. The courts are practically unanimous in holding that a broker employed to sell or exchange lands earns his commission, unless the contract of employment contains a stipulation to the contrary, when a customer and the employer enter into a valid and binding contract for the sale and exchange of lands. In a few jurisdictions the introduction of a customer by the broker is an implied representation by the broker that the customer is able to carry out the contract to buy or exchange; and hence in those few jurisdictions if a contract is made between an employer and customer and is not completed on account of the inability of the customer to buy or exchange, the broker cannot recover any compensation: Butler v. Baker, 17 R. I. 582 (23 Atl. 1019, 33 Am. St. Rep. 897); Riggs v. Turnbull, 105 Md. 135 (66 Atl. 13, 11 Ann. Cas. 783, 8 L. R. A. (N. S.) 824), but the literally overwhelming weight of authority is that, unless the employer and broker have stipulated to the contrary, the broker has fully earned his commission when the customer and employer enter into a valid and binding contract for the sale or exchange of lands and the broker’s right to recover a commission is not, in the absence of bad faith upon his part, defeated or even affected by the fact that it subsequently develops that the customer is unable to complete his contract to buy on account of financial inability or is unable to complete the contract to exchange on account of inability to transfer a merchantable title. When a broker
“1. He may examine the title of the customer, and accept him or not accept him on learning the result of the. examination; 2. He may enter into a contract with him, in which it is provided that his title shall be examined, and if it turns out that his title is not good the contract is at an end; or 3. He may enter into a binding contract with him for the conveyance of the land.”
If the employer takes the third course, he in effect says to the broker:
“I accept the customer as a person ready, able and willing to purchase or exchange lands, as the case may be; you have done what you agreed to do; I have accepted the services rendered by you; and you have earned your commission.”
The employer has a reasonable opportunity to investigate the ability of the customer to perform and when, without fraud or misrepresentation on the part of the broker, the employer accepts the customer by effecting a valid and binding contract with him, it is equivalent to a determination that the customer is a person ready, able and willing to purchase or exchange and ,the employer is estopped thereafter to deny the ability or willingness of the customer to complete the contract: Stewart v. Will, 65 Or. 138, 140 (131 Pac. 1027); Roche v. Smith, 176 Mass. 595 (58 N. E. 162, 79 Am. St. Rep. 345, 51 L. R. A. 510); Francis v. Baker, 45 Minn. 83 (47 N. W. 452); Fox v. Ryan, 240 Ill. 391 (88 N. E. 974); Moore v. Irvin, 89 Ark. 289 (116 S. W. 662, 131 Am. St. Rep. 97, 20 L. R. A. (N. S.) 1168); Hutton v. Stewart, 90 Kan. 602 (135 Pac. 681); Seabury v. Fidelity Ins. etc. Co., 205 Pa. St. 234 (54 Atl. 898); Lombard
“In the event that you find a buyer ready and' willing to consummate a deal for said price and terms or on such other terms and price as may be agreed to by me.”
The defendant contends that the words “consummate a deal” refer to a completed transfer and that they do not refer to a contract for a sale or exchange; while the plaintiff insists that to make a binding contract for an exchange is to “consummate a deal” within the meaning of these words. There are many cases holding that a contract for a sale is “the consummation of a sale”, within the meaning of a broker’s contract which provides for the payment of a commission upon “the consummation of a sale”: Ormsby v. Graham, 123 Iowa, 202, 214 (98 N. W. 724); Micks v. Stevenson, 23 Ind. App. 475 (51 N. E. 492); Wolverton v. Tuttle, 51 Or. 501, 508 (94 Pac. 961); Shaniwald v. Cady, 92 Cal. 83 (28 Pac. 101); Clark v. Battaglia, 47 Pa. Sup. Ct. 290; Purcell v. Firth (Cal.), 167 Pac. 379; Turner v. Watkins, 36 Cal. App. 503 (172 Pac. 620); Rice v. Mayo, 107
According to the rule found in Section 718, L. O. L., “The terms of a writing are presumed to have been used in their primary and general acceptation.” The word “deal” has been defined as “an arrangement to attain a desired result by a combination of interested parties”: Reynolds v. Pray, 148 Iowa, 213, 215 (127 N. W. 50); Ball v. Davenport, 170 Iowa, 33, 40 (152 N. W. 72); Gaut v. Dunlap (Tex. Civ. App.), 188 S. W. 1020, 1021. According to Webster’s International Dictionary, the word “deal” when used to express an “arrangement to attain a desired result” means “a secret arrangement, as in business or political bargains.” The same dictionary defines the word “deal” as “an act of buying and selling; a bargain.” The primary meaning of the term “consummate” is: “to bring to completion; to raise to the highest point or degree; to complete; finish.”
“In cash as a commission for your services the following sums, to wit: $750 cash of the price for which said property is sold or at which it is exchanged, which said commission I authorize you to retain out of the first money paid on the purchase price of said property as a deposit or otherwise. ”
If there had been a sale for cash payable in installments or otherwise, then the commission to be paid would be “$750 cash of the price.” In other words, the commission would be paid out of the price. In Ormsby v. Graham, 123 Iowa, 202, 215 (98 N. W. 724), the employer agreed to execute and deliver a deed, through the broker, “when the said land is sold,” and to allow him the stipulated “commission, to be retained in full out of the cash payment, ’ ’ or, if the payment did not pass through the broker’s hands, then the employer was to pay the conmission directly, and it was there held:
“That a completed sale as a basis for recovery of commissions was contemplated by the parties is shown in the stipulation, which authorized the agent to retain his compensation from the first cash installment of the price for which the property might be sold.”
As has already been said, the general rule is that a broker employed under a contract to sell or exchange lands is, in the absence of a stipulation to the contrary, entitled to his commission immediately upon the execution of a valid and binding contract between the employer and customer; but in the contract presented to us we find that the parties have in at least one instance provided “to the contrary,” for if a contract of sale had been made with the price payable in installments or
The judgment is therefore affirmed. Affirmed.