Black v. Milliken

• Decision Date: 05 April 1927
• Docket Number: 20257.
• Citation: 143 Wash. 204,255 P. 101
• Court: Washington Supreme Court
• Parties: BLACK et al. v. MILLIKEN et ux.

255 P. 101

143 Wash. 204

BLACK et al. v. MILLIKEN et ux.

No. 20257.

Supreme Court of Washington

April 5, 1927

Department 1.

Appeal from Superior Court, Spokane County; Huneke, Judge.

Action by Walter Black and John Pomeroy, a firm doing business under their true name of Black & Pomeroy, against L. D. Milliken and wife. Judgment for defendants, and plaintiffs appeals. Affirmed.

Goodsell & Farrington, of Spokane, for appellants.

Post &amp Russell, of Spokane, for respondents.

FRENCH J.

The appellants are real estate brokers. Action was brought by them against respondents to recover a real estate commission. A demurrer was sustained to the original complaint. Thereafter an amended complaint was filed and a motion to strike from the amended complaint, and a demurrer thereto which were sustained. The appellants electing to stand upon their amended complaint, final judgment was entered and this appeal prosecuted therefrom.

Appellants' cause of action rests on paragraph 2 of the amended complaint, which reads as follows:

'That on or about August 12, 1924, the defendants employed plaintiffs, as said firm and as a part of its said business, to secure for them a purchaser, or, in the alternative, a party having acceptable property he would trade, for certain property owned by them, to wit about 3 acres of land in Spokane county, Wash., being part of an addition to the city of Spokane, Wash., outside of the city limits, and more particularly described and identified as blocks 174, 175, 176, of Orchard avenue. That at the time of said employment, and in evidence thereof, and of the commission they would pay if a deal was effected by plaintiffs, the defendant L. D. Milliken, on behalf of himself and his said wife, signed and delivered to plaintiffs a filled in listing card in words and figures as follows:

"Spokane, Wash., August 12, 1924.

"Legal description, B. 174-175 & 6, Orchard avenue. Will exchange for dairy ranch.

"Price, $8,500. Terms, $4,000 cash, balance, terms. Commission to be 5 per cent., if cash; if trade, 2 1/2 per cent.

"I hereby authorize Black & Pomeroy to sel my property at above stated price.

"[Signed] L. D. Milliken.

"Address, R. No. 10, Spokane.'

'That at the back of said listing card, at the time of said signing, there was filled in by agreement of the parties the following additional description of defendants' said property as follows:

"House, _____; No. rooms, 6; barn, yes; size, _____ other buildings, chicken houses; to school, 1; on road, 1; to town, _____; No. acres, 3; trade for, _____; location, _____; price, $8,500; mortgage, _____; clear, _____; when due, _____; acres tillable, all; cultivated, all; level, _____; rolling, _____; rough, _____; fenced, _____; in wheat, _____; summer fallow, _____; in timothy, _____; orchard, 1; creek, _____; timber, _____.'

'That the parties to said commission agreement were all residents of Spokane county, Wash. That the agreement was made, and the said written evidence thereof was signed by the defendants, in the city of Spokane, in said Spokane county, where, as was well known to the respective parties, at the time, the said descriptive words 'Orchard avenue' have a fixed and generally known meaning as descriptive of the said addition wherein said blocks owned by the defendants as aforesaid are situated. That a generally authenticated plat of the said addition showing the location of the defendants' said blocks 174, 175, and 176, and officially known and designated as Orchard avenue, is on file and of record in the office of the county auditor of said Spokane county, and has been at all times herein mentioned, and that, as a further memorandum in writing of the said agreement entered into on or about August 12, 1924, as aforesaid, and in ratification of plaintiffs' right to the said agreed commission as the brokers instrumental in bringing the parties together, if a trade for the defendants' said property with the parties who, in fact eventually did trade therefor, should be consummated, the defendants, on or about August 30, 1924, made, executed, and delivered to plaintiffs a further signed instrument (to which one George J. Chapman some time afterwards signed his name) reading, in words and figures:

"Exchange and Commission Contract.

"In this instrument L. D. Milliken and Mrs. Luella Milliken are referred to as first party, and George J. Chapman is referred to as second party, and Black & Pomeroy are referred to as third party, and the following described property, situated in Spokane county, state of _____, is referred to as the first property: * * * B. 174-175-175, Orchard avenue, containing 3 acres, more or less, with 6-R. house--and the following described property in Spokane county, state of _____, is referred to as second property: N. 1/2 of N.E. 1/4, S.E. 1/4 of N.E. 1/4, N.E. 1/4 of S.E. 1/4, Sec. 20, Tp. 20, R. 4. containing 160 acres, known as the Bartlett homestead.

"The first party hereby offers to the second party to exchange the first property for the second property as herein provided, and to convey or cause to be conveyed to the second party by warranty deed the first property, free from incumbrance, except * * *, and to give possession of said first property on or before January 1, 1925.

"The second party shall convey or cause to be conveyed to first party by warranty deed the second property free from incumbrance, except * * * a mortgage of $3,500 and a lease which terminates with sale of the place * * * and second party shall give possession of said second property on or before January 1, 1925.

"The first and second parties shall furnish title insurance policy or abstract of title for the first and second properties respectively, certified to the date hereof, showing marketable title free from incumbrance, except as herein stated, and each party shall have a reasonable time in which to consummate this transaction.

"Second party shall have 10 days from the date hereof in which to accept this offer.

"For the purpose of this instrument the following shall not be considered as incumbrances on either property: Reservations contained in any of the forms of patent or deed commonly used by the

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