Anderson v. Wallowa Nat. Bank

• Citation: 100 Or. 679,198 P. 560
• Parties: ANDERSON v. WALLOWA NAT. BANK ET AL.
• Decision Date: 08 June 1921
• Court: Supreme Court of Oregon

198 P. 560

100 Or. 679

ANDERSON v. WALLOWA NAT. BANK ET AL.

Supreme Court of Oregon

June 8, 1921

In Banc.

Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge.

Action by Edwin A. Anderson against the Wallowa National Bank and another. From a judgment for plaintiff, defendants appeal. Reversed, and remanded for new trial.

Although the action is against two defendants, the Wallowa National Bank and the Enterprise Mercantile & Milling Company, for convenience the defendants will be alluded to either as such parties or as "the bank." A résumé of the complaint shows that about November 8, 1915, the plaintiff conveyed to the defendants 1,840 acres of land in Wallowa county. On the same day the plaintiff and the defendants made an agreement in writing whereby the plaintiff was appointed the exclusive agent of the latter from that date until June 1, 1916, to sell the land, for which the defendants were to receive $13,887.96, with interest at 10 per cent. per annum from November 8, 1915, to the date of sale. There were mortgages on the land concerning which it was provided that the buyer should assume and agree to pay them, and that the plaintiff should receive from the defendants as commission for making such sale any excess of the purchase price obtained over the amount of cash to be paid to the defendants upon their delivering a deed of the premises. The complaint further says that on May 29, 1916, the plaintiff produced W. J. Morrow as a buyer of the land, and, acting under the authority of the contract, entered into an agreement with Morrow whereby the plaintiff promised to sell to Morrow for and on behalf of the defendants, and Morrow agreed to buy the land at the price of $32,500, paying $13,887.96 with interest at 10 per cent. from November 8, 1915, to May 30, 1916, and that the purchaser should assume and agree to pay all the other mortgage indebtedness referred to, and further to pay the difference between $32,500 and the aggregate of claims against the land direct to the plaintiff. It is then alleged that--

"The said W. J. Morrow was then and there able, ready, and willing to pay the purchase price for said lands and premises then and there agreed upon, and in accordance with the terms specified in the agreement hereinbefore mentioned between the plaintiff herein and defendants."

The plaintiff's pleading narrates that on or about May 30 1916, the defendants informed Morrow that the plaintiff had no right to sell the property, to offer the same for sale, or to procure a buyer therefor, and refused to make a deed to Morrow, but told him that after June 1, 1916, they would be in a position to deal directly with him and would sell him the property for a less sum than that agreed upon between Morrow and the plaintiff. Claiming that, if the contract had been performed, the plaintiff would have received the sum of $9,648.81, the plaintiff prays for judgment against the defendants, that they be required to pay into court the amount due on one of the mortgages, or to satisfy it of record, and for the money mentioned, together with interest thereon at the rate of 6 per cent. from May 30, 1916, and for costs.

The answer admits the corporate character of the defendants and the delivery of the plaintiff's deed to the defendants but denies all other allegations except as set forth in the answer. The defendants say that on November 8, 1915, they made and signed a writing appointing the plaintiff their agent to sell the land at any time on or before June 1, 1916 that under that contract they were to receive $13,887.96 with interest at 10 per cent. per annum from November 8, 1915, to the date of the deed, all to be paid in cash on delivery of that instrument. It also recites the mortgages mentioned in the complaint and avows that the deed should be made subject to those mortgages, and mentions certain other conditions about the right of defendants to improve the land and the right of the plaintiff to remain in possession. It is further averred that the contract provided that, if the defendants should pay the mortgages or interest, or taxes on the land, the amounts so paid should be returned to them with interest at the rate of 10 per cent. per annum in cash. They say that they complied with all the terms of the contract, and that during the life of the contract they did not sell the land or any part thereof, set out the amounts of money they paid to discharge incumbrances on the land and for which the property was liable, aver their willingness to convey the land, but say that the plaintiff did not produce any purchaser ready, able, or willing to buy the same.

The reply is in these words:

"Denies each and every material allegation therein contained not hereinbefore specially admitted in the complaint."

A jury trial resulted in a verdict in favor of the plaintiff for $8,025.03. From the ensuing judgment the defendants appeal.

A. S. Cooley, of Enterprise, for appellants.

A. L. Morgan, of Moscow, Idaho (A. Fairchild, of Enterprise, and Morgan & Boom, of Moscow, Idaho, on the brief), for respondent.

BURNETT, C.J. (after stating the facts as above).

In order more clearly to understand the case an epitome of the testimony will be convenient. The admitted contract was introduced in evidence without objection. It provides that the plaintiff "may sell the lands at any time on or before June 1, 1916, and upon the said Edwin A. Anderson's securing a purchaser for said lands said corporations agree to convey said lands to such purchaser by proper deed. But the agency of the said Edwin A. Anderson as herein made, and his right to sell said lands, shall expire on said 1st day of June, 1916." As recited in the answer, there are sundry provisions about the incumbrances upon the land and the right of the bank to be reimbursed for such sums as it would pay in discharging those obligations and the taxes. The contract concludes with these provisions:

"The said Edwin A. Anderson is hereby given the exclusive right to sell said lands during the life of this contract, and during the life thereof said corporations, or either of them, shall not sell said lands, nor any part thereof.

"If said lands are sold by the said Edwin A. Anderson, then the purchaser thereof shall assume said mortgages. And the said Edwin A. Anderson shall receive as his commission for sale of the same any sum or sums received for said lands over and above the sums herein required to be paid to said corporations upon the delivery of such deed."

As shown by the testimony, there never has been any dispute about the terms of the agency contract given to Anderson.

There is testimony to the effect that Morrow came from Eastern Washington into Wallowa county in quest of land, having been advised by one of Anderson's advertisements that this property was for sale. He spent three days in examining it, and, as he says, asked Anderson what would be the least he would take for the land, when the latter told him $32,500, and Morrow agreed orally to pay that amount. They arranged then to meet at Enterprise the next day, May 30, to compute the amount due to the bank under the contract and to close the transaction. Morrow's testimony is to the effect that on arriving at Enterprise, where the bank was situated, on the evening of May 29 in advance of Anderson, he met two of the directors of the bank, who were also officers of the other defendant. One of them, on learning his mission there, told Morrow that he could not get a deed from Anderson, and that the latter had no right to sell the land and nothing could be done about the matter until after June 1. They invited him, he says, to meet the directors of the bank in the evening, to talk over the matter, and according to Morrow's testimony it was there reiterated that Anderson could not make the deed and that the bank could not do anything until after June 1. The postponement of the performance and the declaration of the bank that nothing could be done until after the 1st of June are also narrated by the witness Nessley, a real estate agent who at one time had the same land for sale. Morrow says he told the directors of the bank at the meeting in the evening that he had agreed with Anderson about the purchase price and the amount thereof and that he was ready to make the deal. He testified concerning the amount of property he had and said that, if necessary, he could have paid the whole purchase price of $32,500 in cash.

During the trial, according to the record, the parties stipulated about the amounts due on the several incumbrances and agreed that "on the 29th day of May, 1916, the total amount owing by plaintiff to defendants, together with other indebtedness existing against this land and which should be paid or assumed by any purchaser, was the aggregate amount of $24,474.97," and that, if the plaintiff made a sale of the land as alleged at the price of $32,500, and if he should recover in the action, the amount to be recovered is $8,025.03, with interest thereon at the rate of 6 per cent. per annum from May 29, 1916, to the date of the verdict.

It is admitted by the plaintiff that on his arrival at Enterprise on the morning of May 30 he did not talk with any of the officers of the defendants, did not ask them to make a deed and did not go near them. The testimony further shows that the bank officers told Morrow that they wanted to get their money out of the property. Morrow left Enterprise May 30 and did not return until about June 20, at which time the bank offered him the land for $25,000, approximately the amount of its claim and incumbrances against the property, and he made a counter offer of only $24,000. There was some testimony that at different later interviews the bank offered to extend him credit,...