Stewart v. Will

131 P. 1027 | Or. | 1913

Mr. Justice Moore

delivered the opinion of the court.

1. Several errors are assigned, but none of them will be considered except the request for a directed verdict for the plaintiff. The rule is quite general that when a broker employed to negotiate the sale of land, without fault, fraud, 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: 23 Am. & Eng. Ency. Law (2 ed.), 917; Wilson v. Mason, 158 Ill. 304 (42 Pac. 134, 49 Am. St. Rep. 162); Francis v. Baker, 45 Minn. 83, 84 (47 N. W. 452). “When the broker,” says Mr. Justice Loring in Roche v. Smith, 176 Mass. 595, 599 (98 N. E. 152, 154, 51 L. R. A. 510, 79 Am. St. Rep. 345), “knows that the customer produced by him has not a title, and omits to tell his principal of that fact, he has not acted in good faith, and has not earned his commission.”

2. A. F. Flagel, as defendant’s witness, testified that the plaintiff told him that he had stated to Will at the time the exchange of the land was proposed that the title to all of the real property to be conveyed by Abbott was clear, except as to land in Chehalis, Wash. Edward Will, as defendant’s witness, in answer to the inquiry: “Were you present in the Bank of Wood-bum when Mr. Stewart and Mr. Abbott and your father were present, the time negotiations were being-had in reference to this exchange of land? Yes, sir. What, if anything, was said by Mr. Stewart at that time or by Mr. Abbott in Mr. Stewart’s presence with reference to the title of the property? To which property? The property of Mr. Abbott. The property was to be clear, clear title, all but that mortgage on the Clarke County property. ’ ’ In the case at bar there was testimony received at the trial from which the jury might reasonably have concluded that, in order to secure a contract for the exchange of the land, Stewart represented to Will that Abbott’s title to the property to be conveyed or mortgaged to the defendant was free from all encumbrances, except as to mortgages on land in the State of Washington. The abstracts submitted by Abbott disclosed defects in the title. The plaintiff probably supposed tbe title was perfect,'but representing it as such did not make it so, and be is responsible for such declarations. No error was committed in refusing to direct a verdict for Stewart.

All tbe testimony given at tbe trial has been attached, and made a part of tbe bill of exceptions. From a careful examination of tbe entire testimony, we cannot say there is no evidence to support tbe verdict: Constitution of Oregon, Article VII, § 3.

Tbe judgment is therefore affirmed. Affirmed.