Sorenson v. SmithSorenson v. Smith
- Reporters:
- , ,
- Before:
- Moore
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 аre 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 *81that limit, and the remainder at stated intervals. The time thus specifiеd was allowed in order to permit an inspection of the quantity and quality of the timber growing on the real property so as to determine its value. After a partial examination, Storey was reasonably satisfied that the lands were worth the sum demanded; but, being unable to secure a complete cruise, of several subdivisions of the tract within the time limited, he obtained from Kribs an extension for that purpose until December 15, 1906. In the meantime, Storey had engаged to sell the lands for $250,000 to other persons, in whose interests he on December 9, 1906, offered to pay Kribs $10,000 as evidence of good faith, but the proposal was declined. At the expiration of the time ultimately limited, but before a complete inspection of the timber could be made by Storey, and without his offering to pay the $50,000 required, Kribs, at the defendant’s direction, withdrew the lands from sale, and so notified Sorenson and Storey. The latter on July 7, 1907, commеnced an action against Kribs in the Circuit Court of the State of Oregon for Multnomah County to recover $63,000 as damages for an alleged breach of the agreement to sell and convey the land, and the further sum of $2,027 as expenses incurred in cruising the timber.
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 tо 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 *82and excepting Frederick A. Kribs of Portland, Oregon, for сommissions in the sale of the certificates herein-before mentioned, and also agree to save the said Frederick A. Kribs harmless from any claim or demand made by anyone on him for commissions on account of the sale of said certificates.” This contract was executed by the several parties to it at Albany, Oregon, September 2, 1909. Thereafter Sorenson assigned his claim for a commission of five per cent of the stipulated purchase price to the plaintiff, who instituted this action, which eventuated as hereinbefore narrated.
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 bе 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, аnd Smith *84had known that he did not expect to come into the state, it might reasonably have been concluded that the selection of the agent, under such circumstances, carried with it, by necessary implication, the right to delegate his authority to a subagent. The modification of the general rule in this respect is founded on the assumption that, since the person originally appointed to negotiate a sale of land cannot, by reason of his nоnresidence, be expected to visit and inspect the real property, he must of necessity select in his stead someone who can identify the premises to a prospective purchaser: Eastland v. Maney, 36 Tex. Civ. App. 147 (81 S. W. 574). This principle, however, can have no application to the case at bar, since Kribs resided in the state where the land is situated.
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*88thorized agent, and the rate of commission on the dollar shall havе been stated in snch authority,” it was determined that, in the absence of a previous written eoütract, a subsequent Written promise to pay the commission was without consideration and void: Stout v. Humphrey, 69 N. J. Law, 436 (55 Atl. 281); Leimbach v. Regner, 70 N. J. Law, 608 (57 Atl. 138); Bagnole v. Madden, 76 N. J. Law, 255 (69 Atl. 967). A different conclusion was reached in the case of Muir v. Kane, 55 Wash. 131, where, in construing a statute providing that any agreement authorizing a broker to sell or purchase real property for a commission should be void unless the contract or some note or memorandum thereof was in writing, it was decided that the performancе of the services under an oral agreement, void under the statute of frauds, raised a moral obligation which was a sufficient consideration to support a subsequent written promise to pay the stipulated compensation. When an enactment expressly declares that an agreement for the payment of a commission for securing a purchaser of land is void, unless it is in writing and signed by the owner of the real property, the rule is well establishеd that, in the absence of a written contract, a full performance of the services by the broker does not take the case out of the statute of frauds: Myres v. Surryhne, 67 Cal. 657 (8 Pac. 523); Shanklin v. Hall, 100 Cal. 26 (34 Pac. 636); McGeary v. Satchwell, 129 Cal. 389 (62 Pac. 58); Dolan v. O’Toole, 129 Cal. 488 (62 Pac. 92); Beahler v. Clark, 32 Ind. App. 222 (68 N. E. 613); Price v. Walker, 43 Ind. App. 519 (88 N. E. 78); King v. Benson, 22 Mont. 256 (56 Pac. 280); Marshall v. Trerise, 33 Mont. 28 (81 Pac. 400); Blair v. Austin, 71 Neb. 401 (98 N. W. 1040); Rodenbrock v. Gress, 74 Neb. 409 (104 N. W. 758); Barney v. Lasbury, 76 Neb. 701 (107 N. W. 989); Gerard-Fillio Co. v. McNair, 68 Wash. 321 (123 Pac. 462).
*89Our statute of frauds, providing that: “In the following cases the agreement is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents in the cases prescribed by law” — was amended February 9, 1909, by adding the following: “An agreement entered into subsequent to the taking effect of this act, authorizing or employing an agent or broker to sell or purchase real estate for a commission or a compensation”: L. O. L., § 808. This supplemental clause went into effect after the original option referrеd to herein was given, but before the final bargain for the sale of the land was concluded.
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 beеn 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*90cation must be evidenced by a writing, wbicb inode of proving the act is made by the statute indispensable: Reed, Stat. Frauds, § 382, and notes. An exceрtion to this requirement exists in cases where possession of real property has been taken by a purchaser, who has made permanent and valuable improvements upon land pursuant to an oral contract to sell and convey the premises. This departure from the general precept is founded upon the principle that, unless specific performance was decreed in a suit instituted for that purpose, the purсhaser could not be adequately compensated in an action at law to recover the damages sustained. Another reason is that, in suits to enforce the specific performance of an oral contract to convey land, the possession and betterment of which by a stranger to the title, when such occupancy and improvement are clearly traceable to the contract relied upon, afford indisputable evidence of the actual or constructive assent of the owner, thereby establishing tlie purchaser’s right, and sufficient in law to take the case out of the statute of frauds: Brown v. Lord, 7 Or. 302; Wagonblast v. Whitney, 12 Or. 83 (6 Pac. 399).
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 *91committed in refusing to direct a verdict for the defendant.
The judgment should therefore be reversed, and the action dismissed, and it is so ordered.
Reversed.
Rehearing
On Petition for Rehearing.
Mr. Justice Mooredelivered 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 committеd 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 *92been attracted, would be remedied if possible by tbe introduction of testimony on the particular subject.
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 sufficiеnt 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.