129 P. 757 | Or. | 1913
Lead Opinion
delivered the opinion of the court.
It is maintained that errors were committed in denying a motion for a judgment of nonsuit when the plaintiff had introduced her evidence and rested, and in refusing to direct a verdict for the defendant, when the cause was finally submitted. There has been brought up a transcript of the entire testimony, which will be examined with reference to the application for an instructed verdict, since that request necessarily supersedes the motion for a judgment of nonsuit. The facts are that the defendant was the owner and holder of certificates issued by the Northern Pacific Eailroad Company for 7,480 acres of timber land in township .27 south, of range 2 west, of the Willamette meridian. Smith, who it appears resided in Minnesota, employed F. A. Kribs, a real estate broker of Portland, Oregon, to negotiate a sale of his estate in the premises, which interest will be designated herein as lands. Kribs informed George Sorenson, who was engaged in the same business in that city, that these lands were for sale, and gave him a map on which the real property was represented. The plaintiff’s assignor thereupon procured' J. O. Storey, who on September 28, 1906, was granted by Kribs an oral option of 60 days within which to purchase the premises at $25 an acre, on account of which he was to have paid $50,000 before the expiration of
A written contract was prepared at Minneapolis July 23,1909, whereby the defendants, in consideration of $300,000, to be paid as specified, stipulated to sell and assign all his interest in the real property to C. P. Bratnober of that city, and that Storey-Bracher Lumber Company; an Oregon corporation, of which J. O. Storey and Gr. Bracher were respectively the president and secretary. This contract, referring to the purchasers and to the defendant, contained a clause as follows: ‘ ‘ The vendees agree to save the vendor harmless from any claim or demand on him by anyone save
J. O. Storey, referring to the visit at Minneapolis to confer with the defendant in July, 1909, testified as follows: “We had agreed on the negotiations for this land, and Mr. Sorenson, who was working with me at that time to get this land in our hands in some shape so we could jointly sell it again, telegraphed me and asked me what shape I had it, and replying I wired: ‘Have Smith deal cinched. What can you get? Answer.’ ” Referring to that message he said: “What I meant by that was, How much money can you get for the land?” This witness further said that the Storev-Bracher Lumber Company paid no money for the lands, and had no interest therein, except the right to sell the premises; that Mr. Bratnober agreed to buy the property and allow us to sell it; but that neither Sorenson nor himself was able to find a purchaser at the price demanded. Storey received a letter written December 9, 1906, by Sorenson, wherein the writer, referring to Kribs and to the original option to purchase the lands, said: “He wanted to divide the> commission with me and leave you out of the deal. I told him you was in on the deal, and that you was to get an equal division. ”
The foregoing is. deemed to be a sufficient statement of all the material evidence involved in a consideration of the question whether or not, under the original option to sell the property, or by subsequent ratification, Smith became liable to Sorenson for the payment of a commission. It will be remembered that the defendant, a nonresident of Oregon, appointed F. A. Kribs, a real estate broker of this state, to sell lands therein. If Kribs had been a nonresident of Oregon, and Smith
Under a section of a statute of frauds declaring that “no broker or real estate agent selling or exchanging land for or on account of the owner shall be entitled to any commission for the same, or exchange any real estate unless the authority for selling or exchanging such land is in writing, signed by the owner or his au
A text-writer in discussing the phraseology of the common designation of a very celebrated English statute, enacted in 1677 (29 Oar. II, c. 3), and which has been adopted in a more or less modified form in nearly all states of the Union, says: “It may be said that an oral contract within the statute of frauds is not illegal or void, but is only voidable or nonenforceable. Such contracts have been likened to nuda pacta. The lack of a writing is merely a matter of evidence”: Reed, Stat. Frauds, § 678; 20 Cyc. 284. Such an enactment simply annexes the necessity of a writing to the common-law requirement that a contract must be based upon an adequate consideration: 20 Cyc. 281. While there is an irreconcilable conflict in the decisions with respect to the proper methods of ratifying the act of an agent, whose authority should originally have been in writing, it is believed that reason supports the rule that the approval by the principal of such act cannot be predicated upon the mere acceptance of the benefits of a bargain concluded for him; but, when the act is not declared-by the statute to be a misdemeanor, the ratifi
The purpose sought to be accomplished by the enactment of the English statute mentioned was to prevent the practice of frauds which were supposed to be perpetrated, and to preclude a resort to perjuries which were believed to have been committed when oral contracts respecting certain matters could be enforced upon evidence existing only of the recollection of witnesses. It is thought that the primary object that induced the enactment of our statute, hereinbefore quoted, demands that, where the original contract respecting the broker’s compensation was not in writing, as required, the ratification can only bé by a writing The plaintiff’s assignor never having been employed by Smith, nor the services rendered by Sorenson ratified in the manner indicated, it follows that error was
The judgment should therefore be reversed, and the action dismissed, and it is so ordered.
Reversed.
Rehearing
On Petition for Rehearing.
delivered the opinion of the court.
It is maintained in a petition for rehearing that, since no exception was taken to the introduction of any testimony tending to establish the plaintiff’s cause of action, errors were committed by this court in determining that the contract sued upon was within the statute of frauds and incapable of ratification by the defendant, except by the execution of some writing adopted for that purpose, and in concluding that the motion for a directed verdict in Smith’s favor should have been allowed.
It was said in the former opinion that the request for a directed verdict, made after all the evidence had been reviewed, superseded the denial of a motion for a judgment of nonsuit interposed when the plaintiff introduced her testimony and rested in chief. Based on this deduction the petition states generally that it must be supposed that the court assumed a difference between the two motions and refused to apply to the request for a directed verdict the rules of law governing motions for a judgment of nonsuit. The latter motion probably called attention to the particular defect in the evidence whereby it was asserted that a cause of action had not been established sufficient to be submitted to the jury, The motion for the nonsuit having been denied, the deficiency in the evidence, to which notice had
In the former opinion the testimony admitted without exception was deemed competent, and it was also considered that the statute of frauds as far as it related to Sorenson’s employer was waived by not objecting to the admission of testimony tending to show that the contract sued upon was not evidenced by any writing. From an original examination of the entire transcript of the evidence it was not thought, nor from a re-examination thereof is it now believed, that the testimony so received without objection or exception, together with all the inferences and presumptions reasonably deducible therefrom, was sufficient to establish a cause of action to be submitted to the jury; because George Sorenson, the plaintiff’s assignor, was employed by, and was the subagent of, F. A. Kribs, that no privity of contract existed between such substituted agent and the defendant Charles A. Smith, and the latter, never having stipulated in writing to pay a commission to the subagent, did not by negotiating the sale of the lands to C. P. Bratnober and the Storey-Bracher Lumber Company ratify Krib’s employment of Sorenson.
We are compelled to adhere to the former opinion, and the petition for a rehearing is denied.
Reversed: Rehearing Denied.