Thompson v. Sargent

134 P. 7 | Or. | 1913

Mr. Justice Burnett

delivered the opinion of the court.

1. The findings of the court in an action at law are tantamount to a verdict and if regularly made and filed cannot be disturbed on appeal, unless the court can affirmatively say there is no evidence to sustain them: Article VII, Section 3 of the Constitution as amended (see Laws 1911, p. 7).

2. The court decided, and it is practically conceded by the parties, that the agreement between them was in the terms alleged in the answer. The plaintiffs seem to have predicated two causes of action upon this single indivisible contract. They claim not only the commission of $750 named therein but an additional commission for making the sale of some land to some pur^ chaser not named in their complaint. The Circuit Court correctly construed the contract as providing for only one commission and that in the sum of $750. The instrument does not provide for the plaintiffs’ maldng sale of or procuring a purchaser for the land. There is in evidence a contract in writing between the plaintiffs and George Bayne to act as sales agent for the Barry tract mentioned in the agreement. What was to be the deal with Bayne in which the plaintiffs were to assist other than making that contract is not disclosed by the agreement between the parties already quoted.

3. The defendant contends that the commission was not due until a deed was passed to Mr. Bayne, conveying the whole 244 acres mentioned, but this is not so nominated in the agreement. The quantity of land to be included in the deed to be passed to Bayne is not stated in the stipulation of the defendant.

4. The deed, in evidence shows that the defendant conveyed to Bayne the greater portion of the Barry tract. The written agreement between the plaintiffs and Bayne to act as his sales agent for the 244 acres in evidence tends to support the findings of the court that the plaintiffs had performed their part of the contract with the defendant. The passing of the deed to Mr. Bayne for a part of the premises on June 30, 1910, constitutes evidence of when the commission was due. In brief, the complaint, construed liberally after verdiet, alleges a promise of defendant to pay plaintiffs $750 if they made a contract with Bayne and performance of' the condition by plaintiffs. The writings in evidence prove these two averments and the deed to Bayne establishes the time when the stipulated commission was payable. The allegations and the proof correspond.

There is evidence to support the findings made by the court. Hence the judgment is affirmed.

Affirmed.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Ramsey concur.