150 P. 738 | Or. | 1915
Lead Opinion
delivered the opinion of the court.
The errors assigned relate principally to the sufficiency of the evidence under the statute of frauds and to the admission of oral evidence, which the defendants maintain was barred by Section 808, subdivision 8, L. O. L. From the bill of exceptions it appears that upon the trial plaintiff testified to a verbal employment of himself to sell the lands. Upon objection being made counsel for plaintiff stated that a writing had been given, but was lost, offered to prove the contents thereof, and introduced evidence tending to show that
“I met Mr. Hunter on the sidewalk in Bend, and I told him I had a buyer for a tract of yellow pine timber, and I wanted to know if he knew of any. He says, ‘Yes, John; we have got the best tract in Oregon.’ I says, ‘How much is it?’ He says, ‘Practically 27,000 acres.’ And he says, ‘We have got it’- — no, excuse me. I asked him if he could deliver it, and he told me they could, that they had it tied up with an option, but their time was very short, and they had to handle it quick, or they would lose it. ‘Well,’ I says, ‘how much will it take to handle it?’ and he says, ‘about half a million dollars.’ ‘Well,’ I says, ‘I have only one party to present this to, and they are good people.’ I says, ‘I think that they are able to handle it.’ And he wanted to know where they were. I told him that the secretary and treasurer of the company was here in Portland, and that he was the only man that I wanted to present it to; that the tract would not be peddled around, but that I would have to have written authority to present this tract to them, because he would not allow any bullconning. * * He told me he would give it to me. I says, ‘Now, if you will fix that up, authorizing me to sell this tract of timber, and state in it a preliminary of what the tract contains, and so forth, and so forth, so I can present it intelligently, and give me the writing, I will take it to Portland.’ ”
Thereupon plaintiff testified that defendant Hunter gave him a writing in response to the conversation at the office of the defendants. When asked what the letter contained, Taggart stated that it was in effect as follows: J. W. Taggart: “I hereby authorize you to sell this tract of yellow pine timber,” located in Crook County, a plat of which is inclosed, and stating how many thousand acres of the land could be cultivated
“I never told the plaintiff I would give him anything he might ask, or words to that effect, in case he found a buyer for this land, or anything of the kind. His testimony in that respect is not true. At the time I gave him the map or plat containing a description of the land, the only writing I gave him, according to the best of my knowledge, was just a description of the land, telling how many acres there were in the tract, about 22,101 acres. * * I could not say whether there was a letter, or whether it was written on the plat. * * He was down at Portland about a week, and when he came back he said, ‘Boys, I am sorry I could not do anything with the land in Portland.’ He said that he put it up to Mr. Noud, but that the tract was too large for him to handle, so we did not think anything more about it.”
Hunter stated that the $500 was paid to the plaintiff as a present because of the fact that Mr. Noud had taken $5,000 of the stock of the purchasing company. On cross-examination, he testified that defendants gave the plaintiff the plat because he said, “I am going to Portland, and I might be able to do something with this land for you” — that he might find them a buyer. Thereupon the witness was asked this question: “Q. Well, what did you give it to him for?” To this question the defendants objected on the ground that oral evidence is incompetent to prove the employment of plaintiff, which objection was overruled by the court,
“A. Well, he said he thought he could get us a buyer for this land, and that was the object. We thought we would give it to him and let him try. We knew he could not do anything without a plat or a description of the land. We would have been glad for him to furnish us a buyer. We intended for him to get a buyer if he could. We gave him a description of the land in writing, with the price, $24 an acre, and let him bring it to Portland.”
The defendant W. H. Staats was called as a witness on behalf of the defendants, and, being sworn, testified as follows:
“I saw the plat and the writings that were delivered to Mr. Taggart about the 10th of July, 1910, which he has testified about and which he brought down to Portland to show to Mr. Noud. The land that we had an option on was blocked off on the plat with red ink, and we wrote a little description, telling the number of acres, 22,101, and the lay of the land, and that it was good grazing land after the timber was taken off, and that is about all there was on that plat. There was no other writing besides the plat. The price was stated, $24 per acre. ’ ’
On cross-examination, this witness stated that the writing given plaintiff was written by Mr. Hunter, but was not signed; that it did not indicate that Mr. Hunter had the land for sale, but was just a piece of paper with the price on it; that defendants knew plaintiff was coming to Portland, and expected him to use the plat; that plaintiff asked defendants for the plat, and said:
“ ‘I am going to Portland, boys, and I understand you have got some yellow pine timber to sell.’ We told him we had, and he said, ‘If you will make me a plat of it, I will take it along, and maybe I can do*146 something with it.’ We gave it to him on those terms, and he took it along.”
No objection was made to the cross-examination of Mr. Staats.
It is contended by counsel for plaintiff that the direct and cross-examination of defendants discloses the contract of 'employment alleged in the complaint; that no express promise to pay was necessary to be proved (citing Kiser v. Holladay, 29 Or. 338 [45 Pac. 759] ); that where a party admits the existence of an agreement within the statute of frauds, or permits parol evidence of its contents to be proved without objection, he waives his right to require a writing (citing Sorenson v. Smith, 65 Or. 78, 92 (129 Pac. 757, 131 Pac. 1022, Ann. Cas. 1915A, 1127, 51 L. R. A. (N. S.) 612) ; Scofield v. Stoddard, 58 Vt. 290 (5 Atl. 314); Livermore v. Stine, 43 Cal. 274).
We come then to the important and often troublesome question as to the sufficiency of the writing to take the case out of the statute of frauds or the waiver of any defect therein or want of writing by defendants. Section 808 provides, in part, as follows:
*147 “In the following cases the agreement is void unless the same or some note or memorándum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by 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. * * 8. 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 compensation or a commission.”
“The object of the statute of frauds was to prevent the facility to fraud and perjury to which contracts dependent upon the memory of witnesses were exposed, by requiring them to be reduced to writing. “When this is done, there does not seem to be any rea*148 son why the consideration might not be proved by parol, as in the case of any other contract, or, if there is. any reason for expressing the consideration, the true one ought to be expressed, yet the authorities cited show that the words ‘for value received,’ or that a seal itself, sufficiently expresses the consideration.”
In that case no consideration for the agreement to purchase real property was expressed in the memorandum except by the seal of the defendant.
The defendants, after plaintiff had rested his case, introduced evidence tending to show the employment of plaintiff and the transaction of furnishing him with the plat and description of the timber lands in order that he might make the sale. In the consideration of the motion for a nonsuit, where the record contains all the evidence produced upon the trial, as it does in this case, we must consider the entire evidence: Trickey v.
Affirmed.
Rehearing
Reargued on rehearing October 11, reversed November 16, 1915.
On Rehearing.
(152 Pae. 871.)
On rehearing there was a brief for appellants over the name of Messrs. Veazie, McCourt <& Veazie, with an oral argument by Mr. Arthur L. Veazie.
For respondent there was a brief over the names of Messrs. Pipes & Pipes and Mr. John B. Ryan, with oral arguments by Mr. Martin L. Pipes and Mr. George A. Pipes.
In Banc.
delivered the opinion of the court.
“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 by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or*152 secondary evidence of its contents, in the cases prescribed by law”: Sec. 808, L. O. L.
Then follows an enumeration of the cases to which the law is applicable. No. 8, the one pertinent herein, was added to the statute in 1909, .and reads thus:
“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 compensation or a commission.”
The memorandum relied upon in the present case was sought to be established by secondary evidence of its contents, the paper having been lost or destroyed. The plaintiff testified that it read substantially as follows :
“J. W. Taggart:
“I hereby authorize you to sell this tract of yellow pine timber, located in Crook County, a plat of which is inclosed, and stating so many thousand acres of the land could be cultivated after the timber was all off, how many thousand feet it cruised to the acre, about the number of logs it was, surface cleared, and the price $22.50 per acre.
“[Signed] Hunter & Staats.”
This statement, reduced to its simplest terms, is an authorization of plaintiff to sell a particular tract of land at a specified price per acre. It is signed by the party sought to be charged, and, if it expresses the consideration, it is sufficient. The problem submitted then is: What is the true interpretation of the statute? To an unsophisticated layman, reading the two clauses of the law above quoted, it would undoubtedly mean that, if I sell my services as a real estate broker, I cannot recover therefor, unless I have a written memorandum signed by my employer specifying the land I am to sell- and the compensation I am to receive for
“The party to be charged” is necessarily the one against whom enforcement of the agreement is invoked, and the only consideration which can be expected from him is to pay for the broker’s services. In the case of Fisk v. Henarie, 13 Or. 156 (9 Pac. 322), the court, speaking of a similar agreement, says:
‘ ‘ The writing in such case need not be., signed by both parties, nor contain any terms further than that, if the broker will procure such purchaser, he will be allowed a stated commission.”
This interpretation is adopted in the case of Sorenson v. Smith, 65 Or. 90 (129 Pac. 761, 131 Pac. 1033, Ann. Cas. 1915A, 1127, 57 L. R. A. (N. S.) 612), wherein Mr. Justice Moore says:
“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 be by a writing. ’ ’
Again, in the opinion upon rehearing, the same learned justice says:
“Because George Sorenson, the plaintiff’s assignor, was employed by, and was the subagent of, P. A. Kribs, then 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.”
“In this respect our Code is more stringent than any other to which our attention has been directed. In mandatory language it forbids proof of any kind other than the writing, yet here the plaintiff would rely upon the oral testimony entirely, unless we may except the newspaper article to which reference has been made. As already pointed out, that does not satisfy the statute, because, for one thing, it does not express the consideration. ”
In that case the writing signed by the party to. be charged said:
‘ ‘ Several weeks ago I made a tender to the authorities through my agent, J. A. Taylor, of my property, ’ ’ referring to property elsewhere described in the article.
It is true that in the decisions there can be found some dicta indicating that the writers are not in full harmony with some of the provisions of the statute of frauds, and would be satisfied with a very slight performance' of its requirements. Nowhere do we find any encouragement for the doctrine that its provisions or any one of them can be entirely ignored with impunity. The decisions of other states are of slight value to us in the solution of this problem, by reason of the diverse language used in their statutes. The first important particular in which the statutes differ may be best appreciated by noting the fact that the Oregon statute declares the agreements in the cases mentioned to be void. "We find this to be the case in only eight other states, viz.: Alabama, Michigan, Nebraska, Nevada, New York, Washington, Wisconsin and Wyoming. In California, North Dakota, South Dakota and Montana the contract is declared to be “invalid,”
“The English statute of frauds differs from ours. That provides that no action shall be brought upon such contracts unless they are in writing, and signed by the party to be charged. * # In some instances — • perhaps in many- — under the English statute, such contracts would not be absolutely void, as under ours. It is proper here to call attention to an erroneous statement as to the effect of our statute found in the case of Hagelin v. Wacks, 61 Minn. 214, 216 (63 N. W. 624). The writer hereof, who wrote the opinion in that case, stated that the statute of frauds does not declare oral contracts as to estates or interests in lands void, but merely that they are not enforceable by action, citing Trowbridge v. Wetherbee, 11 Allen (Mass.), 361; Lowman v. Sheets, 124 Ind. 416 (24 N. E. 351, 7 L. R. A. 784). Such is not'the law under our statute, because it makes such contracts void. Evidently the writer had in mind the English statute, which does not declare such contracts void, but nonenforceable by action”— citing Madigan v. Walsh, 22 Wis. 501, to the same effect.
It seems clear that, if a parol agreement is void under the statute of frauds, no blunder, or even intentional admission of incompetent evidence, could vitalize the contract to such an extent as to justify a recovery thereon. The authorities called to our attention which appear to sustain the converse theory are either
‘ ‘ The -plaintiff suggests that the written memorandum in this case is aided or supplemented by certain admissions in the answer. But these will not help matters. It is now the settled law that the defendant can have the benefit of.the statute, even if he admits an oral agreement. He may admit a verbal agreement, and yet assert its invalidity” — citing Browne, St. Frauds, § 509; Wilson S. M. Co. v. Schnell, 20 Minn. 40 (Gil. 33).
*157 “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. ’ ’
A careful examination of the entire opinion discloses the fact that this statement was not necessary to the decision, which was based upon the fact that an examination of all the evidence failed to disclose a case sufficient to go to the jury. The case of Scofield v. Stoddard, 58 Vt. 290 (5 Atl. 314), is not in point, for the reason that the Vermont statute does not declare such contracts void, but simply states that “no action shall be brought,” etc. The case of Livermore v. Stine, 43 Cal. 274, is not of any practical value, for the reason that the court distinctly says that the contract then under consideration was not within the statute of frauds, and its statement in regard to waiver is pure dictum. It may also be noted that the California statute does not use the term “void,” but declares such contracts to be “invalid.” In the case of Fish v. Henarie, 13 Or. 156 (9 Pac. 322), it will be noted there was a writing signed by the party to be charged describing the land, naming the price at which it was to be sold, and specifying the commission to be received by the broker. It will further be observed that this case was determined under the California statute, which differs from ours in that it employs the following language:
“Evidence, therefore, cannot be received, without the writing, or secondary evidence of its contents.”
In the case of Johnston v. Wadsworth, 24 Or. 494 (34 Pac. 13), the court held that the instrument sued
However we may regard the statutes of our state, we are not at liberty to repeal them by interpretation.
The judgment of the trial court is reversed and the action dismissed.
Reversed on Rehearing.
Action Dismissed.
Dissenting Opinion
delivered the following dissenting opinion:
I am still of the opinion that the written authorization shown by the evidence expresses the consideration and complies with the statute. I therefore adhere to the former opinion herein.