74 Wash. 340 | Wash. | 1913
— This is a suit to recover a broker’s commission upon an alleged sale of real estate. The case was tried to the court. There was a judgment for the plaintiff. The defendant has appealed.
Respondent’s claim has its basis in two written contracts. The first contract was made on the 16th day of November,
On the 6th day of December following, the respondent in
It was further stipulated “that whenever any house erected on any of said lots has been fully roofed and plastered, the party of the first part (the appellant) upon payment to it by the party of the second part of the sum of one hundred dollars, will sell and convey such lot to the party of the second part by a good and sufficient deed of general war
The contract further provides that the mortgage and notes executed by third parties should be in favor of the appellant, to the extent of the principal and interest due it under the second mortgage executed to it by the building company. It was further agreed that the appellant should
It is alleged in the complaint that this contract was entered into through the “exclusive efforts” of the respondent.
The first question presented is, was the second contract a sale? The respondent asserts that it was; whilst the appellant contends that it created an agency or a trusteeship. We cannot construe the contract as a sale. A reading of the contx’act as a whole forces the conviction that it constitutes the building company an agent, coupled with an interest. It creates a mere cooperative plan whereby the appellant furnished the land, and the building company was to furnish satisfactory plans and specifications, and erect residences upon the lots with the view of selling the properties to third parties to the mutual advantage of the contracting parties. The contract, when read as an entirety, has none of the elements of a sale. It passes no present title, but merely agrees to pass the title to the building company in order that it might (a) secure a loan upon the property for fifty per cent of the cost
The execution of this contract at the instance of the respondent ipso facto withdrew the property therein specified from the operation of the first contract. There was no provision for a commission in the second contract, and therefore there can be no recovery.
The contracts are too lengthy to be set forth in extenso. The first contract covers ten pages of the printed brief; the second contract covers sixteen pages of the brief. We have, however, set forth sufficient of both contracts to render a discussion intelligible. The statute of frauds presents a second barrier to the recovery of a commission. There is a vital difference in the essential portions of the two contracts. It is apparent from the first contract that it was the desire of the appellant to convert the property into a cash equivalent, with all possible dispatch. It is also apparent that the second contract was made in the hope that it would quicken the sale of the remaining property, and thus redound to the mutual advantage of the first contracting parties. In the furtherance of this end, the appellant induced the respondent to enter into a second contract, which standing alone, gave no promise of cash sales. The second contract is complete in itself, except upon the question of a commission, and while not signed by the appellant, it is conceded that it caused it to be made. It makes no provision for a commission; hence there can be no recovery. The case, in this respect, is controlled by Forland v. Boyum, 53 Wash. 421, 102 Pac. 34. In that case the owner entered into a contract with a broker whereby she gave him the exclusive right for a period of thirty days to sell the property described in the contract, at a fixed price, upon an agreed commission. Later, upon the same day, the broker entered into a written contract with a purchaser for the sale
In the case at bar the respondent contends that it is entitled to a twenty per cent commission stipulated in the first contract of sale. Testimony was offered on the part of the appellant to the effect that it was expressly agreed that there should be no commission flowing from the latter contract unless the respondent procured a sale of that property to a third party, which it made no pretense of doing. This testimony was not competent, and we only refer to it to show the wisdom of the law, and the necessity of adhering to it in all cases where a recovery is sought in the face of the statute.
Reversed, with instructions to dismiss.
Chadwick, Mount, and Parker, JJ., concur.