Brace v. Johnson

• Citation: 262 P. 148,45 Idaho 327
• Decision Date: 17 December 1927
• Docket Number: 4844
• Parties: E. R. BRACE, Appellant, v. RICHARD H. JOHNSON, Respondent
• Court: United States State Supreme Court of Idaho

262 P. 148

45 Idaho 327

E. R. BRACE, Appellant,
v.
RICHARD H. JOHNSON, Respondent

No. 4844

Supreme Court of Idaho

December 17, 1927

BROKERS-NECESSITY OF CONTRACT IN WRITING.

Plaintiff could not recover on oral agreement to effect that, if plaintiff procured purchaser on defendant's acquiring title to certain property through sheriff's deed, he should receive from defendant for his services all of sale price in excess of $2,000, which was the cost of the property to defendant, since it [45 Idaho 328] amounted to contract for payment of commission for procuring purchaser of real estate, which must be in writing to be valid under C. S., sec. 7979.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Action to recover for services rendered. Appeal from order sustaining demurrer and judgment of dismissal. Affirmed.

Judgment affirmed. Costs to respondent.

F. A. Hagelin and D. L. Rhodes, for Appellant.

C. S., sec. 7979, is intended for the protection of the owners of real estate against the unfounded claims of brokers, and was never intended to apply to an agreement as between persons not standing in the relation of owner and broker. (Johnston v. Porter, 21 Cal.App. 97, 131 P. 69; Casey v. Richards, 10 Cal.App. 57, 101 P. 36; Baker v. Thompson, 14 Cal.App. 175, 111 P. 373; Gorham v. Heiman, 90 Cal. 346, 27 P. 289.)

The pleading of this case shows conclusively that the contract is one for service on the part of the plaintiff to ascertain the value of the property for the defendant; that the sale of the property was only an incident to fix the liability of defendant for payment of the same, which service he has accepted and withholds the part of the purchase price he agreed to pay plaintiff. (Darknell v. Coeur d'Alene etc. Transp. Co., Ltd., 18 Idaho 61, 108 P. 536; King v. Seebeck, 20 Idaho 223, 118 P. 292.)

Had the parties contemplated a broker's agreement, the plaintiff would have been entitled to insist upon payment when he brought the parties together, and would not have been required to wait until defendant was fully paid. (Wood v. Broderson, 12 Idaho 190, 85 P. 490; TonkinClark Realty Co. v. Hedges, 24 Idaho 304, 133 P. 669.)

Charles F. Reddoch, for Respondent.

This being an action for the recovery of compensation for finding a buyer for real property, no recovery can be had, as the contract declared upon rests in parol. (C. S., sec. 7979; 9 C. J. 558; Weatherhead v. Cooney, 32 Idaho 127, 180 P. 760.)

Where the statute requires a brokerage contract to be in writing, no recovery can be had upon a quantum meruit. (Weatherhead v. Cooney, supra; McMurran v. Duncan, 17 Ariz. 552, 155 P. 306; Jamison v. Hyde, 141 Cal. 109, 74 P. 695; Holland v. Flash, 20 Cal.App. 686, 130 P. 32; Fullenwider v. Goben, 176 Ind. 312, 95 N.E. 1010; Nisbet v. Dozier, 204 Ky. 204, 263 S.W. 736; Paul v. Graham, 193 Mich. 447, 160 N.W. 616.)

Performance by the broker does not remove the bar of the statute. (Weatherhead v. Cooney, supra; Taylor v. Peterson, 76 Ore. 77, 147 P. 520; Keith v. Smith, 46 Wash. 131, 13 Ann. Cas. 975, 89 P. 473.)

The special demurrer is well taken, in that the amended complaint fails to disclose the time within which the plaintiff was to perform his part of the contract. (2 C. J. p. 619; Rice Lands & Products Co. v. Blevins, 61 Cal.App. 536, 215 P. 402; Slotboom v. Simpson Lumber Co., 67 Ore. 516, Ann. Cas. 1915C, 339, 135 P. 889, 136 P. 641.)

BABCOCK, Commissioner. Adair, C., Wm....