118 P. 1018 | Or. | 1911
delivered the opinion of the court.
The statement in the brief of counsel for defendant “that there were allegations in the complaint and evidence before the jury which would sustain a finding that services had been rendered, and that there was no specific or enforceable agreement as to the amount, thus entitling plaintiffs to recover on a quantum meruit,” renders it unnecessary for this court to consider the motion of defendant for a directed verdict, and brings us to the matter of the instructions assigned as error.
Taking the allegations in the complaint as to the agreement for adding to the purchase price and dividing the amount that the price was to be enhanced for their compensation, together with the testimony of plaintiffs themselves, it is clear that it was according to their statement, a matter of speculation, and it was expected by the parties that they would be able to sell the land for an enhanced price, and in that way realize their compensation or commission for making the deal. The testimony of plaintiffs themselves clearly shows that, in so far as a fixed amount of commission is concerned, it was conditioned upon their ability, after taking the option, to make a sale of the timber lands at an enhanced price, and as the agreement for a fixed amount of compensation or commission- was not sustained by any evidence, but was repudiated by plaintiffs, they must recover, if at all, upon a quantum meruit: Gollnick v. Marvin, 60 Or. 312 (118 Pac. 1016), decided November 14, 1911. In other words, in order for plaintiffs to recover on an express contract for a fixed compensation under the pleadings and evidence, giving the plaintiffs the most favorable view thereof, it would be necessary for the plaintiffs to show that a sale of the land was made, or could have been made, at an enhanced price over that named in the option.
Under the Constitution of Oregon (Article I, Section • 17), providing that in all civil cases the right of trial by jury shall remain inviolate, we think the defendant was entitled to have this matter passed upon by a jury (Shobert v. May, 40 Or. 68: 66 Pac. 466: 55 L. R. A. 810: 91 Am. St. Rep. 453: Elder v. Rourke, 27 Or. 363: 41 Pac. 6), and that the trial court erred in giving the instruction excepted to by defendant.
It follows that the judgment of the lower court must be reversed, and the cause remanded for a new trial.
Reversed.