293 P. 430 | Or. | 1930
Lead Opinion
This is an action by a real estate broker to recover commissions upon the alleged employment by defendant to negotiate a lease of certain property in Portland. This is a second appeal. A full statement of the record of the case is set forth in the opinion rendered upon the first appeal, vide,
Because of the failure of the trial court to give a requested instruction upon the first trial, this court reversed the case and ordered a new trial. The requested instruction is as follows:
"There has been introduced in evidence, * * * a letter written by the defendant to plaintiff mentioning prices and terms relating to the transaction alleged in the complaint, * * *. I instruct you that this letter does not show that the defendant employed plaintiff as his agent and did not make the plaintiff the defendant's agent or broker to negotiate the transaction alleged in the complaint." *119
Upon the second trial in the court below, the above instruction was given; and then the court further instructed the jury as follows:
"The plaintiff Richanbach does not contend that this letter constituted his employment as agent or tends to prove that he was employed as agent, but claims that the alleged employment as agent and the alleged agreement to pay him commissions were in the form of a verbal agreement asserted by him, but denied by the defendant, to have been reached prior to the writing of the letter referred to."
To the giving of this instruction defendant excepted.
The plaintiff testified to the making of an oral agreement with defendant, and the defendant, in testifying, contradicted plaintiff's testimony in that regard.
Defendant also requested the following instruction, which was not given:
"You are instructed that if you believe from the evidence that the plaintiff, without being instructed so to do by Mr. Taylor, went to the defendant Mr. Ruby, and requested a return of the $1,000, that had been deposited by Mr. Taylor with Mr. Ruby, as earnest money or part payment to bind the bargain, and that the $1,000 was returned to Mr. Richanbach the plaintiff, because it was demanded by him, under the belief on the part of Mr. Ruby that the demand for the $1,000 made by Mr. Richanbach was made by him as the agent of Mr. Taylor, if such a demand was made, and the said $1,000 was accepted from Mr. Richanbach by Mr. Taylor, without any objection on the part of Mr. Taylor, then you would be justified in finding and believing that the negotiations between Taylor and Ruby had been abandoned with the advice, aid and consent of the plaintiff, and your verdict should be for the defendant." *120
To the failure of the court to give this requested instruction, the defendant excepted. From a verdict and a judgment based thereon in favor of plaintiff, defendant appeals.
The appellant insists that the lower court erred in giving that part of the instruction which states, in effect, that plaintiff does not contend that the letter in question constituted his employment, but claims that the contract was verbal, which claim defendant denies. The giving of this instruction did not constitute error. It was applicable to the testimony given by the plaintiff and the defendant. It is the duty of the presiding judge to instruct the jury with respect to the theories of the parties defined by the pleadings and supported by substantial evidence: Schrunk v. Hawkins,
The case being based upon a cause of action in quantum meruit, it is claimed by defendant and appellant that the court committed error in admitting evidence of an express agreement to pay a definite commission. This is not tenable. No error was committed by the court in that regard: Sinnock v. Zimmerman,
The failure of the court to give the requested instruction of defendant, referring to the alleged legal effect of the return of the $1,000 earnest money deposited by Mr. Richanbach, is also urged as ground for reversal.
In the absence of a provision in the contract with the broker constituting the earnest money, or part of it, a fund from which the broker's commission is to be paid, the return of earnest money in itself does not relieve a party of his liability to a broker for commissions *121
upon a sale which was not consummated because of the default of such party: Peavy v. Greer,
The requested instruction fails to take account of the effect of the alleged default of the defendant. If defendant were unable to perform his part of the contract, before a finding that Taylor had abandoned such contract and that plaintiff had consented thereto would be justified, because of the acceptance of the return of the earnest money by Taylor, it would be necessary for the testimony to disclose that it was not on account of defendant's inability to perform that such earnest money was returned and accepted. It is true that, even though the consummation of the sale negotiated by the plaintiff was prevented by reason of defendant's default, nevertheless, plaintiff could have waived his right to commission. To warrant a finding that plaintiff waived his right to commissions, however, it would be necessary for the testimony to disclose an intention on the part of plaintiff to forego his claim to commissions; and representations or conduct, or both, manifesting that intention to defendant. The requested instruction omits reference to the possible effect of the alleged default on defendant's part, which it is claimed by plaintiff prevented the consummation of the sale, and also fails to state the law of waiver just outlined.
Finding no error, the case is affirmed.
ROSSMAN, J., did not participate.
COSHOW, C.J., RAND and BELT, JJ., concur. *122
Addendum
The instruction does not include the element of belief on defendant's part, that, by requesting the return of the deposit and accepting it for Taylor, plaintiff was thereby waiving his right to commission, nor the element of action prejudicial to defendant in reliance upon such belief. Neither does it include the element of belief on defendant's part, that the abandonment, if any, by Taylor, was with the advice and consent of the plaintiff, nor that defendant acted to his prejudice in reliance upon such belief.
In the case of Smith v. Martin,
If the court had given this instruction, it would have told the jury how the jury were to pass upon the effect of the evidence if it merely disclosed a request for the deposit, its acceptance by plaintiff for Taylor, and a belief, on defendant's part, that plaintiff was acting for Taylor in that respect; namely, that the effect of such evidence was to disclose action, on defendant's part, prejudicial to him in reliance, either upon a belief that there had been an abandonment by and with plaintiff's advice and consent, or, upon a belief that plaintiff thereby waived his right to commission. Neither of these conclusions would have necessarily been justified, as a matter of fact, for the reason that each disregards the phase of the record tending to support a finding that the alleged prejudicial action, on defendant's part, namely, the return of the earnest money, was taken because defendant himself was unable to comply with his part of the contract of exchange, and had defaulted therein. Reliance by defendant upon the belief that plaintiff in requesting such return was acting for and on behalf of Mr. Taylor is not at all inconsistent with the conclusion that, *124 because of defendant's inability to comply with his part of the contract of exchange, defendant returned the earnest money upon demand to the one whom he so believed to be the agent of Taylor.
If, in the requested instruction, there had been incorporated the elements either of belief on defendant's part, that abandonment of negotiations by Taylor had occurred by and with the advice and consent of plaintiff, or belief, on defendant's part, that plaintiff waived his right to commission, and reliance upon such belief resulting in action by defendant to his prejudice uninfluenced by his own default, if any, the requested instruction would not have been subject to the criticism urged. The manner of proof, whether by direct, indirect, verbal, or written testimony, is not involved in the construction of the requested instruction.
In thus analyzing the requested instruction, we have not referred to defendant's plea of estoppel. This appears in paragraph VII of his answer. It reads thus:
"That the defendant was induced to return to the plaintiff the said one thousand ($1,000) dollars theretofore given him by plaintiff as earnest money wholly by the representations of plaintiff that his said client was unable to furnish the defendant the ten thousand ($10,000) dollars cash deposit as required in and under the terms of said proposed lease contract, and the plaintiff is and ought to be estopped from claiming any benefits under or because of said proposed contract or from claiming damages, if any, by him suffered at any time or at all, because of the failure of defendant and plaintiff's said client, Morris Taylor, to consummate a binding contract for the lease or sale of defendant's said before described premises."
It will be noted that the requested instruction omits reference to the representation alleged in the answer *125 as the inducement for the return of the earnest money; and substitutes an alleged representation not pleaded as ground of estoppel. Moreover, the representation thus substituted, if so pleaded, would have been insufficient. The requested instruction was properly refused.
Petition for rehearing denied.
ROSSMAN, J., did not participate in this opinion. *126
