Brace v. Johnson

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

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 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. E. Lee, C. J., Givens and T. Bailey Lee, JJ., concurs. Budge and Taylor, JJ., did not sit at the hearing and took no part in the decision.

OPINION

BABCOCK, Commissioner.--

The amended complaint in this action was filed January 1, 1919 and contains in substance the following allegations: That on January 1, 1919, the defendant claimed to have an account against the Flint Mines, Ltd., a corporation, which was then the owner of certain patented quartz mining claims, describing the same; that at said time the property had been idle for many years, and due to this fact it was difficult to ascertain the extent of the work which had been done, or whether or not the property had any value, present or prospective; that the defendant was desirous of collecting his alleged claim, but did not desire to make any expenditures unless he could ascertain the probable value of the property, which could only be done by an examination and certain work and labor in opening up the underground works of said property, and that defendant thereupon orally proposed to plaintiff that if the latter could secure a person who was ready, willing and able to examine the property and ascertain whether or not it had any value, either present or prospective, by performing the necessary work and labor to determine the same, and who would thereupon enter into a contract or agreement with the defendant to purchase the property in an amount sufficient to pay the alleged claim of the defendant, to wit, the sum of $ 2,000, that the defendant would reduce his claim to judgment and obtain title, if possible, through a sheriff's deed, and if such title was agreeable to the proposed purchaser, defendant would receive for the use and benefit of plaintiff, and give over to plaintiff as compensation for his services in assisting the defendant in collecting the amount claimed to be due him, whatever sum or sums the purchaser would pay for the property over and above the amount of his claim and costs and expenses of reducing said claim to judgment whenever and at whatever time the same should be paid to the defendant; that pursuant to said oral agreement, plaintiff procured R. C. Dugdale to examine the property and perform the work and labor necessary to determine the value thereof, and on or about October 1, 1921, Dugdale entered into an agreement with the defendant whereby he agreed to purchase the...