Buchtel v. Evans

• Decision Date: 24 November 1891
• Citation: 21 Or. 309,28 P. 67
• Parties: BUCHTEL et al. v. EVANS.
• Court: Oregon Supreme Court

28 P. 67

21 Or. 309

BUCHTEL et al. v. EVANS.

Supreme Court of Oregon

November 24, 1891

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge. Reversed.

Action by Buchtel & Mall against John Evans to recover compensation for procuring a purchaser of defendant's land. From a judgment for defendant, plaintiffs appeal.

John H Hall, for appellants.

W.H Adams, for respondent.

BEAN, J.

This is an action by plaintiffs, as real-estate brokers, to recover the sum of $7,400, as commissions for the sale of a tract of land near Tacoma, Wash., belonging to defendant. The complaint in substance avers that in April, 1890, plaintiffs agreed with defendant to procure for him a purchaser for certain real estate owned by him near Tacoma containing 74 acres, and to receive, as their compensation for so doing whatever sum such purchaser might pay for said land in excess of $1,000 per acre; that they did, in pursuance of this contract, procure one H.C. Clement, who purchased said land paying defendant therefor in cash $1,100 per acre, but defendant refuses to pay to plaintiffs the amount by him received in excess of $1,000 per acre. The answer of defendant is a specific denial of the allegations of the complaint. Evidence having been given on the trial by defendant tending to show that plaintiffs were acting as the agents of Clement in the purchase and sale of the land in question, and not of defendant, the court, among other things, instructed the jury, in effect, that if plaintiffs were in the actual employment of both Clement and defendant and concealed from each their employment by the other, they could not recover; to the giving of which instruction plaintiffs, by their counsel, duly excepted, because it was not within the issues made by the pleading, and then requested the court to instruct the jury that there was no issue or averment by defendant that plaintiffs were employed by Clement, and that the question of double employment was not a matter for their consideration, which instruction the court refused to give. The giving and refusal of these instructions are the errors relied on by plaintiffs on this appeal. Their contention is that, before defendant can avail himself of the defense of the illegality of this contract with plaintiffs, by reason of their employment by Clement, it is incumbent on him to plead it. The question, therefore, now before us, is, conceding that the employment of a real-estate broker by both buyer and seller is illegal and void, and cannot be enforced against either, must such fact of double employment be alleged as a defense, or can it be proven under the general issue?

At common law, under the general issue, the defendant was entitled to give in evidence any fact which went to show a valid defense. The Code of this state has wrought an entire change in that regard, and substituted for the general issue an answer, which must contain (1) a specific denial of the material allegations intended to be controverted, and (2) a statement of any new matter constituting a defense. Hill, Code, § 72. If the defendant by his answer merely denies the facts alleged, he can only offer in evidence such facts as go to disprove the plaintiff's cause of action. A general traverse, under the Code, will not permit the defendant to introduce other evidence than that which tends directly to disprove the facts alleged in the complaint. Benedict v. Seymour, 6 How.Pr. 298; Pom.Rem. § 673. So that if a defendant intends to rest his defense upon any fact which does not directly tend to contradict the evidence of plaintiff or disprove his material averment of fact, and is not included in the allegations necessary to the plaintiff's cause of action, it is new matter, and must be pleaded, (Boone, Code Pl. 111; Pom.Rem. § 691;) "the true rule," as Mr. Bliss says, "being that under a denial the defendant should be permitted to show no fact that does not go directly to disprove the fact denied," (Bliss, Code Pl. § 327.) A defense, therefore, which admits the apparent validity of the contract or transaction set out in the complaint, but seeks to avoid its effect by establishing some circumstance, transaction, or conclusion of fact, not inconsistent with the truth of the complaint, is new matter, and must be set out. In the case at bar the plaintiffs alleged a contract valid on its face with defendant, which the latter denied. It was the existence of this contract as a fact which was in issue, and which the defendant denied, and which he could introduce evidence to disprove. Proof that the plaintiffs were in the employment of another was no fact included in plaintiffs' allegations, and necessary to sustain their cause of action. That was a matter new and independent of the allegations of the complaint, and which could not be proved unless pleaded. It in no way tends to disprove the allegations of the complaint, but, on the other hand, necessarily admits the contract as alleged, but seeks to avoid liability thereon, by showing that plaintiffs were also acting as the agents of the buyer at the same time, and consequently it is illegal and void.

Plaintiffs allege that they made a contract with defendant, which he denies. It is the existence of this fact which defendant was entitled to disprove, and if the facts, when developed should contain any element of illegality,--that is, the facts of their contracting with each other,--the plaintiffs must fail; but they fail either because the facts do not exist upon which the contract is based, or that the facts contain an element of illegality which relieves from liability. In such case it is manifest that if the facts were such as a defendant may be liable upon, and were not disproved, a recovery could be had; but, if they were such that the statement of them involves an illegal element, the plaintiffs have not shown a valid contract, and cannot recover. In this case the fact that plaintiffs were the agents of Clement was not in any way included in plaintiffs' cause of action, and, if true, in no way tended to show that plaintiffs did not make the contract with defendant as alleged, but necessarily admitted such contract, else there was no double employment. So that, when defendant undertook to interpose the defense of double employment, he necessarily assumed that there was a contract relation between him and plaintiffs, apparently valid, but sought to escape liability by showing that because of some new and independent fact the contract with him was void. Before he can do so it is incumbent upon him to plead such matter, so that plaintiffs may be fully informed of his defense, and prepared to meet it, if they so desire. "The rule is well settled, in strict accordance with the true theory of pleading under the...