Rugh v. Soleim
180 P. 930
Or.
1919
Check Treatment
BURNETT, J.

1. An appeal based upon written notice thereof is taken from the Justice’s Court by serving such a notice, filing the original with proof of service indorsed thereon by the justice and by giving an undertaking for costs and disbursements on the appeal, but the undertaking does not stay the proceedings unless it further provide that the appellant will satisfy any judgment that may be given against him in the appellate court on the appeal. The undertaking would have been void had it been limited in amount: State ex rel. v. McKinmore, 8 Or. 207; Sanborn v. Fitzpatrick, 51 Or. 459 (91 Pac. 540); Sutton v. Sutton, 78 Or. 9 (150 Pac. 1025, 152 Pac. 271). In that respect, since the undertaking is in the terms of the statute, it is sufficient. Begarding the justification of Surety, Section 2461, L. O. L., relating to proceedings in Justice’s Courts, declares:

“All sureties on an undertaking on appeal must have the qualifications of bail upon arrest, and if required by the adverse party, within five days after filing the undertaking, they must justify before the justice in like manner.”

2. The plaintiffs do not pretend to have excepted to the sufficiency of the surety or made any requirement *334that he justify. Hence they must be deemed to have waived that right. Moreover, the bill of exceptions discloses that on the hearing of the motion to dismiss the appeal in the Circuit Court the defendant offered to allow the plaintiffs even then to except to the sufficiency of the surety and that he would justify to the satisfaction of the court, but this offer was not accepted. The waiver of this right takes with it all that depends upon it; which lets into operation the 'provision of Section 2463, L. O. L., stating that:

“Upon the filing of the transcript with the clerk of the Circuit Court the appeal is perfected.”

In the absence of any attempt to require the surety to justify the plaintiffs cannot now abjure their waiver and complain that the appeal was not perfected.

3. The fact that the surety subscribed to the affidavit of justification before the appeal was taken cannot lessen his liability thereon, and hence the plaintiffs were not harmed by that action. It is not pretended that there were any proceedings in the Justice’s Court after the filing of the undertaking and the allowance of the appeal. The transcript of the Justice’s Court proceedings forming a part of the transcript on appeal and brought into this court by the plaintiffs, appears on inspection to be regular as against any of the objections urged by the motion to dismiss. There was no error in the ruling of the Circuit Court denying this motion.'

4. Confessedly, there was no writing signed by the defendant authorizing or employing the plaintiffs as an agent or broker to sell or purchase the real estate mentioned, within the meaning of Section 808, L. O. L., declaring such agreements to be void unless the same or some note or memorandum thereof expressing the consideration be in writing and subscribed by the *335party to be charged, and declaring that no evidence other than the writing shall be given in such cases except in the instances provided by law respecting lost instruments and the like. It seems that the plaintiffs drew up a memorandum of the contract between the defendant and one Gibbs, with whom the former exchanged properties, which memorandum was signed by both Gibbs and the defendant and contained this clause:

“Commission on deal to be figured in regular manner and we both agree to pay customary sum.”

This was not a contract made directly for the benefit of the plaintiffs. It was a transaction between other parties, in which the plaintiffs had no privity or interest and they cannot claim anything under that stipulation. Although Gibbs and Soleim “both agree to pay customary sum,” it is not stated to whom they are to pay it, thus making a situation analogous to those portrayed in Parker v. Jeffery, 26 Or. 186 (37 Pac. 712), and Washburn v. Interstate Investment Co., 26 Or. 436 (38 Pac. 620), where a general promise to advance money for payment of debts or claims without specification of what particular demands are to be paid affords no cause of action in favor of one who might be indirectly benefited by the performance of the promise. The excerpt quoted above is not such a memorandum as satisfies the statute of frauds in the interest of the plaintiffs. There was therefore an utter failure of proof within the meaning of this statute authorizing them to recover for services as brokers in the sale or purchase of real estate for commission.

5, 6. It is claimed,, however, that inasmuch as they allege that some personal property was to be included in the deal as well as their services for drawing up the contract and helping to close the deal, the *336plaintiffs are entitled to recover at least for the services other than acting as a broker to secure a purchaser for real property. The contract stated, however, is not a severable one. It is for a lump sum without reference to the separate value of any particular item and hence, as it includes services within the statute of frauds, the whole stipulation is void and cannot be enforced as such, the action being plainly upon the contract as alleged and not for the quantum meruit: Banks v.Crow, 3 Or. 477; Horseman v. Horse-man, 43 Or. 83 (72 Pac. 698); Grant v. Grant, 63 Conn. 530 (29 Atl. 15, 38 Am. St. Rep. 379); Pond v. Sheean, 132 Ill. 312 (23 N. E. 1018, 8 L. R. A. 414); Becker v. Mason, 30 Kan. 697 (2 Pac. 850); Dennis v. Kuster, 57 Kan. 215 (45 Pac. 602); Jackson v. Evans, 44 Mich. 510 (7 N. W. 79); Thayer v. Rock, 13 Wend. 53; Clark v. Davidson, 53 Wis. 317 (10 N. W. 384); Ellis v. Cary, 74 Wis. 176 (42 N. W. 252, 17 Am. St. Rep. 125, 4 L. R. A. 55); Kessler’s Estate, 87 Wis. 660 (59 N. W. 29, 41 Am. St. Rep. 74); R. & L. Co. v. Metz, 175 App. Div. 276 (160 N. Y. Supp. 145); Quirk v. Bank of Commerce & Trust Co., 244 Fed. 682 (157 C. C. A. 130). It would be an evasion of the statute if a real estate broker assuming to act under oral appointment to negotiate a sale of land, should be allowed to tack his claim for that service to another demand for drawing a deed and make the latter the device by which he could recover on an agreement which the law says is void unless it is embodied in a writing containing certain prescribed terms. The directed verdict was a proper solution of the issue.

7, 8. Another point of view leading to an affirmance of the ruling of the Circuit Court is illustrated by Patty v. Salem Flouring Mills Co., 53 Or. 350 (96 Pac. 1106, 98 Pac. 521, 100 Pac. 298), teaching the doctrine *337that when both plaintiff and defendant rest the case and move the court for a directed verdict, the direction of the court in that respect must be sustained if any of the evidence will support it. An essential element of the case for the plaintiffs in the instant contention was the establishment of a custom regulating the rate for calculating commissions. It is elementary that to be binding a custom must be reasonable, must be general and must be known to the parties or be of such general notoriety that their knowledge of it must be presumed. The only witnesses who testified about a custom controlling the rate of computation were two of the plaintiffs. There is no evidence in the record tending to show that the custom was either general or was known to the defendant. Very properly, then, the Circuit Court might conclude that the plaintiffs had failed to establish this essential branch of their case and hence was justified in directing a verdict for the defendant on account of failure of proof in that respect. There is no error in the rulings of the Circuit Court. The judgment is therefore affirmed. Affirmed.

MoBbide, C. J., and Bean and Benson, JJ., concur.