181 P. 1 | Or. | 1919
“For services rendered in the sale of my property located between 16th and 17th Street on Washington Street and more fully described as Number 531 on Alder Street and 528-528% and 530 on Washington Street in the City of Portland, State of Oregon, I hereby agree to pay to O. V. Badley the agent who sold said property to one J. R. Ellison the sum of Seven Hundred and Fifty ($750.00) Dollars and I hereby order and direct Geo. W. Gearhart the attorney for J. R. Ellison to pay to O. Y. Badley said sum of $750.00 when final settlement is made and Mr. Ellison’s part of the agreement for the exchange of the properties is fulfilled, said contract being a part of this memorandum.
“Cora E. Puffer.
“Received payment 8-25-1917.
“O. Y. Badley.”
This document was introduced by the plaintiff as evidence of the fiduciary relation existing between plaintiff and defendant in the transactions involved herein. Defendant argues that it is inadmissible for the reason that it does not satisfy the requirements of Section 808, L. O. L., as amended by Laws of 1917, page 786, which is the statute of frauds. The portions of this statute which are to be considered in this connection, are as follows:
*364 “In the following cases the agreement is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents, in the cases prescribed by law: * * 8. An agreement entered into subsequent to the taking effect of this act, authorizing or employing an agent or broker to sell or purchase real estate for a compensation or commission; provided, however, that if the note or memorandum of such agreement be in writing and subscribed by the party to be charged, or by his lawfully authorized agent, and contains a description of the property sufficient for identification, and authorizes or employs the agent or broker named therein to sell such property, and expresses with reasonable certainty the amount of the commission or compensation to be paid such agent or broker, such agreement of authorization or employment shall not be void for failure to state a consideration. ’ ’
This evidence was not excluded by the court, but was admitted “subject to the objection,”, the court evidently treating the case, so far as procedure is concerned,- as if it were a suit in equity. However, the court at the same time announced that in weighing the evidence he should not consider the evidence tending to prove agency in, Zimmerman, for the reason that if there were any such agency its proof rested in parol, and was incompetent, as violating the statute of frauds as prescribed in Section 808, L. O. L.
“In an action tried by a court without a jury, the receipt of incompetent evidence, properly excepted to, is not prejudicial, unless injury has necessarily resulted.”
“The rule that notice to an agent is notice to his principal is not applicable unless the notice has reference to business in which the agent is engaged under authority from the principal, and is pertinent to matters coming within that authority; and hence a principal is not affected with knowledge which the agent requires while not acting in the course of his employment, or which relates to matters not within the scope of his authority, unless the agent actually communicates his information to the principal”: 2 C. J. 863.
We find no reversible error In the record, and the judgment is affirmed. Affirmed.