161 P. 405 | Or. | 1916
Opinion by
When this cause was submitted to the jury, the defendant’s counsel moved for a directed verdict in favor of their client, on the grounds that the evidence received
“I misunderstood the question. I meant, I made the assignment of this $15,000. * *
“Q. That is the claim in this ease?
“A. Yes.”
On recross-examination he was asked:
“When was it you made the assignment?”
He responded:
*137 “Just before this suit was brought.
‘ ‘ Q. When was that ?
“A. About a year and a half ago.
“Q. What did you say to your wife?
“A. I said I am assigning this claim. You will have to bring a new suit.
“Q. What is this claim?
“A. This $15,000.
“Q. What is this claim you assigned to your wife?
“A. My claim against Kribs.
“Q. What for?
“A. Commission of $15,000.”
“ ‘We will keep on working on the deal. We will pull it through yet.’ # *
“Q. Can you state during what month in 1907, if at all, you continued to act in the negotiations, to bring about that sale?
“A. Well, I continued all the time, trying to put it through.
“Q. Can you state more definitely during what months in 1907 you went to Mr. Kribs about it?
“A. I used to go to his office pretty near every week or so.
“Q. During that year?
“A. Yes.
“Q. Did you, or not, have any conversation with Mr. Storey about it in that year?
“A. Yes, sir; all the time. I had the same office with bim.
“Q. During that time, 1907, you may state whether or not the parties got together on any agreement about the price of the land.
“A. No, they never got together.”
Viewing this testimony in the light of the averment of the complaint that about July-, 1907, the defendant “continued the employment of the said George Sorenson and instructed him to negotiate further with said J. 0. Storey,” it will be seen that though Sorenson persisted in his efforts to bring about a sale of the land to Storey after the original option was canceled, and for that purpose frequently conferred with Kribs about the matter, no assent was given by the latter relating to such sale until about three months after the oral option was declared forfeited. Here is testimony tending to show the making of a new contract. When the agreement was consummated is un
“Defendant claims that, when the first deal with Storey fell through, he notified George Sorenson that his employment by the defendant was ended, and that if he desired to act as broker in the matter any further he must make an arrangement with said O. A. Smith. Defendant had a perfect right to terminate the employment of George Sorenson after the first deal with Storey fell through, and if said employment was terminated at said time so far as defendant is concerned, your verdict must be in favor of the defendant. A person who employs a broker may terminate the employment at any time, provided he acts in good faith, and there is no evidence in this case warranting any finding that defendant acted in bad faith in terminating said employment at said time, if he did so terminate it.”
At the defendant’s request the court in its general charge said:
“A brokér must perform his contract while his employment lasts, and. if he fails to do so before his employment has been terminated, he cannot recover anything for any services that he might have rendered up to the time his employment was so terminated. If he desires to protect himself, he may do so by providing in Ms contract that Ms employment shall last for a specified time; and if tMs is not done, it is the absolute right of the person who employs Mm to ter*141 minate the employment at any time without any liability, provided he acts in good faith, and provided the broker has not at that time fully performed his part of the eontract by obtaining a purchaser on terms acceptable to the seller of the property.”
It will be observed that the fourth request desired a direction to the jury that their verdict must be for the defendant if the employment of Sorenson was terminated when Smith withdrew the land from the market. The language thus employed omits an allegation of the complaint:
“That immediately after the defendant had failed to carry out said agreement as aforesaid (to sell the land to Storey), and on or about the-day of July, 1907, the defendant, assuming to act as the agent for said C. A. Smith, the owner of said land, and representing that he had authority from said C. A. Smith so to act, agreed with said Sorenson to obligate the said Smith to pay said Sorenson said commission, and continued the employment of the said George Sorenson, and instructed him to negotiate further with said J. 0. Storey for the purpose of procuring said J. O. Storey to pay a higher price for said property,” etc.
From this allegation it is reasonably to be inferred that, though Sorenson’s employment was terminated when the original option was declared at an end, he was subsequently engaged by the defendant to negotiate a sale of the land at a greater price, but upon the same terms as had been previously agreed upon. Sorenson’s testimony on this issue, to which reference has been made, tends to substantiate the averment last quoted. The fourth request having omitted this matter, no error was committed in refusing to give that instruction, since its substance was embraced in the part of the charge that has already been repeated.
“Even if you should find that employment of George Sorenson continued after the first deal with Storey fell through, and should find all of the other facts in favor of plaintiff, said George Sorenson would not earn any commission until he had actually procured a purchaser on terms acceptable to said C. A. Smith. It is not claimed by plaintiff that in the employment of George Sorenson after said deal with Storey fell through the defendant or said O. A. Smith fixed any definite terms upon which said C. A. Smith would be willing to sell the land; [but, on the contrary, it appears that said terms were not finally agreed to on the part of said C. A. Smith until after said C. A. Smith had been assured that there would be no commission to be paid by him or said Kribs to George Sorenson or any other person in said sale, but that the price he was to receive for the property would be net to him]. George Sorenson would not earn any commission until he had actually procured the purchaser for the property on terms acceptable to said 0. A. Smith, and therefore, if you-find that said C.A. Smith refused to sell the property, except on condition that there should be no commission paid by him or said Kribs, and said Storey communicated said fact to George Sorenson, and thereupon George Sorenson waived all right to any commission and agreed with said Storey to get his pay out of a future sale of said property by said Storey, and thereupon said Storey and those associated with him completed said purchase and entered into a contract for the purchase of the same for $300,000 net to said O. A. Smith, then plaintiff would not be entitled to recover, even though all the other facts were found in her favor.”
This request was denied, for the reason that the language embraced within the brackets, as indicated, assumed the existence of a fact which was in dispute.
“In some jurisdictions it is held that a request which is properly refused for defects in form or substance may be sufficient to call the attention of the court to the matter upon which an instruction is desired, and make a failure to give an appropriate instruction thereon error.”
In support of the text quoted the decisions cited, omitting criminal causes, were rendered by courts in the states of Kansas, Missouri and Texas. In addition to the cases from the states mentioned, the defendant’s counsel further cite decisions given upon .this subject by the courts of last resort in the states of Kentucky (Western Union Tel. Co. v. Sisson, 155 Ky. 624,160 S. W. 168), Massachusetts (Black v. Buckingham, 174 Mass. 102, 54 N. E. 494), Vermont (Hazard v. Smith, 21 Vt. 123), and West Virginia (Carrico v. West Va. R. Co., 35 W. Va. 389, 14 S. E. 12). “If a request,” says a text-writer, “is in part incorrect, or is inappropriate as applied to the facts, the court commits no error in wholly refusing it”: Branson, Instructions to Juries, § 101, citing many cases.
Another author discussing the same subject remarks :
“In order to entitle a party to insist that a requested instruction be given to the jury, such instruction must be correct both in form and substance, and such that the court might give to the jury without modification*144 or omission. If the instruction, as requested, is objectionable in any respect, its refusal is not error”: 1 Blashfield, Instructions to Juries (2 ed.), § 175, p. 402.
The cases cited to uphold the language last repeated, omitting decisions from states where their courts seem to have ruled on both sides of the question, are found in the reports of decisions in the courts of Alabama, Arkansas, California, Colorado, Georgia, Illinois, Indiana, Maine, Maryland, Michigan, New York, Ohio, Oklahoma, Utah and Wisconsin. It will thus be seen that the great weight, of authority is opposed to the contention now made with respect to this part of the case.
Our statute, relating to the giving of instructions, reads:
“In charging the jury, the court shall state to them all matters of law which it thinks necessary for their information in giving their verdict, but it shall not present the facts of the case, but shall inform the jury that they are the exclusive judges of all questions of, fact”: Section 139, L. O. L.
“The jury, subject to the control of the court, in the cases specified in this Code, are the judges of the effect or value of evidence addressed to them, except when it is thereby declared to be conclusive. They are, however, to be instructed by the court on all proper occasions” in respect to precautionary matters: Section 868, L. O. L.
In applying these provisions of the law it has been held that, though each party to an action is entitled to have his theory of the cause submitted to a jury, if any evidence has been received tending to support such plan, no failure of the court in this respect would be considered on appeal, except upon the denial of a requested instruction which correctly stated the law applicable to the case: Cerrano y. Portland Ry., L. &
11. It is maintained by defendant’s counsel that errors were committed in denying their requested instructions as follows:
*146 “(16) Plaintiff cannot recover in this case if the original agreement between George Sorenson and F. A. Kribs was for the payment by Kribs to George Sorenson of a portion of the commission he wonld receive from C. A. Smith on the sale of the land, and if this original contract between George Sorenson and Kribs was never changed.
' “ (17) If the contract between George Sorenson and Kribs was for the division between Kribs, Sorenson and Storey of the commission which Smith wonld pay Kribs on the sale, and this agreement was never altered, then plaintiff cannot recover, and yonr verdict must be for the defendant.”
At the request of the defendant’s counsel the jury were instructed as follows:
“This action is based on the theory that defendant assumed to hire George Sorenson as a broker for the sale of the land in question for a specified commission of 5 per cent, and represented that he had authority to bind C. A. Smith to such a contract. Therefore I charge you that, if you find that there was no specific agreement between George Sorenson and F. A. Kribs for the payment of 5 per cent commission, but that the amount of the commission George Sorenson was to receive was not agreed upon, then the plaintiff cannot maintain this action, and your verdict must be for the defendant.”
When the court had concluded its charge one of the jurors inquired:
“Do we have to find for the full amount!
The court replied:
“This action is brought on a contract, and plaintiff is entitled to 5 per cent of the amount or nothing. The jury would not have any discretion to find an intermediate amount. It is either the full amount or nothing, and to that full amount should be added interest at 6 per cent, from the 31st of October, 1909, down to this date.”
The part of the charge so given at the solicitation of defendant’s counsel is inconsistent with their requests last referred to, which were denied. In respect to the issue designed to be embraced in the sixteenth request, the defendant testified that, under the terms of the original agreement for the sale of the land at $187,000, the commission to be paid by the owner for procuring Storey as a purchaser was to be divided between the witness and Sorenson. Kribs further testified that after the original option was declared forfeited the broker was advised thereof, and notified that his services in negotiating contracts relating to the sale of the land were ended. Having acquiesced in the court’s instruction that the plaintiff was entitled to the entire commission of 5 per cent of the selling price and interest thereon or nothing, the defendant has no reason to complain because of the refusal to give the sixteenth and seventeenth requested instructions.
The plaintiff’s counsel contend, as alleged in the complaint, and as their evidence tended to show, that the land was sold by Smith to Storey, in the name of the Storey-Bracher Lumber Company and Bratnober, with whom Storey had associated, and that Sorenson had negotiated with Storey in effecting a sale of the-premises, which fact appears to be evidenced by the written contract therefor, from which the jury might reasonably have conclued that the broker was entitled to the commission demanded. The “broad equities”' thus stated undoubtedly afford cogent reasons, when uttered, as they probably were, to the jury in order to obtain a favorable verdict for the defendant; but. in a law action, where on appeal only alleged errors, duly assigned can be considered, the argument now-adduced has no place.
Believing no prejudicial error was committed at the-trial, it follows that the judgment should be affirmed and it is so ordered. Aeeirmed.