146 P. 99 | Or. | 1915
delivered the opinion of the court.
Some time after the negotiations were ended, Mr. Scott caused a copy of the contract to be recorded in the miscellaneous records of Multnomah County. Mrs. Brown did not execute any binding agreement with Mrs. Merrill for the purchase of the property. She had the option of purchasing the same or forfeiting the $1,000 deposit. No sale was ever made to Mrs. Brown, and she now claims a return of the deposit. Mr. Scott also seeks to obtain commission for his services.
Mr. F. W. Newell, who was associated with Mr. Scott and assisted in the negotiations, testified to the effect that, when Mrs. Brown declined to go on with the sale, he considered it a closed incident; but that she never gave him any reason therefor. It appears from the evidence that Mrs. Merrill was willing to complete the transaction; that her husband acted for her and was insistent upon Mrs. Brown closing the deal until the latter told him that she did not wish to see him any more; that, after the deposit was made, Mrs. Brown visited the premises a second time, and went into one of the houses on the land for the first time, where she was informed by one of the tenants that the rent paid for the property was $90 instead of $100 per month, as represented to her by Mrs. Merrill. The evidence shows, however, the latter amount to be
It is stated in 19 Cyc. 242:
“A commission ordinarily becomes payable upon completion of the transaction which the broker was*572 employed to negotiate, in the absence of a stipulation in the contract of employment to the contrary. ’ ’
The principle stated by this court in Stewart v. Will, 65 Or. 138 (131 Pac. 1027), is invoked by the claimants :
“The rule is quite general that when a broker employed to negotiate the sale of land, without fault, concealment or other improper practice, produces a purchaser with whom the owner makes a valid, binding and enforceable contract for the sale of the premises the commission has been earned, though the contract for the sale of the land is never carried out.”
This rule does not assist Mr. Scott in the case under consideration, for the reason that the sale in question was never carried out, and no valid, binding or enforceable contract was made between the proposed purchaser and the owner, Mrs. Merrill. If a broker merely secures from a customer a contract by which the latter becomes entitled to consummate the purchase or forfeit the earnest-money or partial payments at his option, the broker is not entitled to a commission : 19 Cyc. 251, 252.
The findings of the Circuit Court were in accordance with the evidence, and the judgments should therefore be affirmed; and it is so ordered. Affirmed.