184 P. 487 (Or. 1919), Oregon Home Builders v. Montgomery Inv. Co.
| Judge | BENSON, JOHNS, and BENNETT, JJ., concur. |
| Parties | OREGON HOME BUILDERS v. MONTGOMERY INV. CO. [a1] |
| Citation | 94 Or. 349,184 P. 487 |
| Date | 21 October 1919 |
| Court | Oregon Supreme Court |
| Docket Number | . |
Page 487
Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.
Action by the Oregon Home Builders against the Montgomery Investment Company. From judgment for defendant, plaintiff appeals. Affirmed.
This is an action by a real estate broker to recover a commission. The Oregon Home Builders, plaintiff, and the Montgomery Investment Company, defendant, are corporations. The plaintiff is engaged in the business of a real estate broker. The defendant owned a four-story brick building and the land upon which it stood in Portland. On June 1, 1916, the defendant signed a writing which reads as follows:
"To The Oregon Home Builders: You are hereby employed and authorized to offer for sale or exchange and given the exclusive sale of the property described in the margin hereof, at the price and terms noted therein or at such other price and terms as I may hereafter agree to. You are hereby authorized by me to accept a deposit to be applied on the purchase price of said property, and, in my name, to execute and deliver a binding written contract for the sale and conveyance of the said above described property. In the event that you find a buyer ready and willing to consummate a deal for said price and terms or on such other terms and price as may be agreed to by me, or place me in touch with a buyer to whom I at any subsequent time sell or convey said property, I hereby agree to pay you in cash, as a commission for your services, the following sums, to wit: $750.00 cash of the price for which said property is sold or at which it is exchanged, which said commission I authorize you to retain out of the first money paid on the purchase price of said property as a deposit, or otherwise. I hereby warrant the information given in the margin to be true and that I am in peaceable possession of the said described property, that my title to the same is perfect, and is without incumbrance as stated, and that I will furnish a satisfactory abstract of title brought down to the date of sale, showing such title. In case of an exchange of my said property, I have no objection to your representing and accepting compensation from the other party to the exchange as well as myself. I agree to furnish an abstract of title to the date of sale. I further agree that this contract and the authority here-by conferred shall continue in effect until I give you ten days' notice of withdrawal.
"Montgomery Investment Co.,
"Bayard T. Allyn, Pres.
"A. J. De Lano, Treas.
"F. J. De Lano, Secy.
"West half of lots 7 and 8, block 135, Portland, Multnomah county, Oregon, known as No. 386 Third street, Portland, Ore. Price $70,000. Terms, exchange. Present incumbrance: Mortgage $25,000 at 7 per cent. Are interest charges and all bonded assessments paid to date? Yes. City liens, bonded: None. Character of improvements: 4-story brick store and apartment."
Afterwards the plaintiff introduced to the defendant Claude D. Starr as a prospective purchaser. After "numerous negotiations" between Starr and the defendant, "in all of which said negotiations the plaintiff corporation assisted, associated, and participated," the defendant and Starr signed a writing as follows:
"This agreement, made and entered into this 1st day of June, 1916, by and between the Montgomery Investment Company, a corporation, by its president and secretary, with the corporate seal, party of the first part, and Claude D. Starr, party of the second part, witnesseth:
"That for and in consideration of the agreements hereinafter contained, the party of the first part agrees to sell to the party of the second part and the party of the second part agrees to purchase from the first party the following described property in Multnomah county, state of Oregon, to wit: [Here is described the land upon which the brick building is located.] Subject to a mortgage for the sum of $25,000.00, which said mortgage is due November, 1916. Also to convey by bill of sale all the furniture, except personal effects, now in the above named premises; free and clear of all incumbrances.
"And in payment of the purchase price of the above described property, and in consideration of the conveyance thereof, the party of the second part agrees to sell and convey to the party of the first part the following described properties, situated in Multnomah and Clackamas counties, state of Oregon, to wit: [After describing two lots in Portland, one of which was subject to a mortgage for $4,500, while the other is said to be clear of incumbrance, the writing described two tracts aggregating 232.72 acres located in Clackamas county.] Same to be clear of all incumbrances.
"And the said party of the second part agrees to pay at the consummation of this transaction the sum of $5,000 in cash, to the party of the first part.
"All rentals, interest and adjustments to be made as of July 1, 1916. Deeds conveying said properties from one to the other of the parties hereto are to be good and sufficient warranty deeds conveying a fee-simple title to the above described properties, free from all incumbrances except as herein mentioned, and said deeds shall be delivered from one to the other of the said parties hereto within a reasonable time. Abstracts of title or certificates of title to be furnished each party to the other to their respective properties, and a reasonable time shall be allowed for the correction of any defects that may appear."
The plaintiff was "the procuring cause of the execution of the agreement" made between the defendant and Starr.
On June 10, 1916, Starr submitted to the defendant abstracts of title covering the two Portland lots and the two Clackamas county tracts. The abstracts "did not disclose that the said Starr was the owner in fee simple of the property situated in Clackamas county * * * and did not disclose that said Starr had a marketable title thereto." In truth, Starr "was not at any time prior to the commencement of this action the owner in fee simple of the real property known as the Clackamas county lands, and did not have a marketable title thereto, but his title therein was defective." On July 20, 1916, the defendant delivered to Starr a complete statement of its objections, "pointing out the defects to the title of said Clackamas county lands as shown by said abstract of title," and "refused to consummate said deal unless the defects so pointed out should be remedied within a reasonable time and on or before the 3d day of September, 1916." Starr failed to correct the defects pointed out to him, and he "did not prior to the 3d day of September, 1916, or at all, tender to the defendant an abstract of title showing that said defects or any of them had been remedied, or showing that the said Starr had or could convey a marketable title to said Clackamas county lands." On September 3, 1916, the defendant notified Starr "that on account of his failure and refusal to comply with said contract the defendant considered itself no longer bound thereby." Starr had caused the written agreement which he and the defendant had signed to be recorded; and in February, 1917, he delivered to the defendant a quitclaim deed to the brick building. Up to and including the time when the quitclaim deed was delivered, "Starr was not able to convey a fee-simple or marketable title to said Clackamas county lands to the defendant, and neglected within a reasonable time after the defects to the title were pointed out to him by the defendant to cure said defects or any of them." Starr was ready and willing at all times, however, to pay the defendant the $5,000 stipulated in the contract.
The plaintiff brought this action to recover $750, alleging that it had earned and was entitled to that sum as a commission under the terms of its contract with the defendant. The facts narrated in the foregoing statement are taken from the findings of fact made by the trial judge, who, with the consent of the parties, heard the cause without the aid of a jury. The judgment was for the defendant, and the plaintiff appealed.
The plaintiff contends that the findings labeled "Findings of Fact," so far as they relate to Starr's title to and ownership in the Clackamas county lands, are no more than conclusions of law; and that therefore they are insufficient to support the judgment. Where the parties to an action at law waive their right to a jury, the findings made by the trial judge who hears and decides the cause are in the nature of a special verdict; and hence, since the standard fixed for a special verdict is also taken as the standard for the "findings of fact," the trial judge must find the facts with the same degree of particularity as is required in a special verdict returned by a jury. A special verdict must find all the facts essential for a judgment; but ultimate and constitutive, rather than evidentiary, facts should be stated. Generally, a special verdict must pass upon all the material issues; and yet a special verdict will be adequate if it states sufficient findings on an issue which ultimately determines the case and necessarily supports the judgment rendered so that other issues in the controversy become immaterial. Turner v. Cyrus, 179 P. 279. If the findings made by the trial judge are not in truth findings of fact, but in effect are only conclusions of law, then the judgment cannot stand because it must be supported by a statement of ultimate facts. 38 Cyc. 1979.
An "evidentiary fact" is one that furnishes evidence of the existence of some other fact. 17 Cyc. 822. An...
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