Cook v. Gordon

• Decision Date: 13 January 1914
• Citation: 68 Or. 557,137 P. 782
• Parties: COOK ET AL. v. GORDON.
• Court: Oregon Supreme Court

137 P. 782

68 Or. 557

COOK ET AL. v. GORDON.

Supreme Court of Oregon

January 13, 1914

Department 2.

Appeal from Circuit Court, Multnomah County; W. L. Bradshaw, Judge.

Action by W. J. Cook and another, a partnership under the firm name of Cook & Clark, against J. D. Gordon. From a judgment for plaintiffs, defendant appeals. Modified.

This is an action to recover a broker's commission. The cause was tried before the court without the intervention of a jury. The court found for plaintiffs and rendered judgment against the defendant for $9,300, from which the latter appeals.

The complaint alleges, in substance, that on September 26, 1911 the defendant employed plaintiffs, as brokers, to sell certain real property in Yamhill county, Or., owned by him and agreed to pay the plaintiffs, as commission, $1,075, and all sums received over and above $125 per acre, the selling price for 329 acres of land; that plaintiffs sold the land on December 14, 1911, for $150 per acre, making a commission pursuant to the agreement, of $9,300, which is unpaid. In the defendant's answer the contract of employment was admitted, and the averment made that the plaintiffs were unable to procure a purchaser, and that the agreement had been annulled by mutual consent. It denied that the sale was made for $150 per acre, or that anything was due the plaintiffs; and further pleaded that in November, 1911 plaintiffs endeavored to negotiate a sale of the land to one S.W. Childers and wife, and proposed that defendant accept in part payment certain real property for $17,400, which plaintiffs agreed to purchase at that price in payment of their commission, and to secure the balance by a mortgage of $8,100 on the real property; that on such conditions defendant accepted the proposition and exchanged the properties; and that plaintiffs now refuse to comply with their agreement to purchase the Childers property. The plaintiffs' reply denied the new matter of the answer and averred that subsequent to September 26, 1911, and prior to the sale, the plaintiffs proposed in writing to take either of the Childers properties mentioned in the answer, but that the defendant failed to accept the proposition.

Earl C. Bronaugh and J. M. Gearin, both of Portland, for appellant. G. G. Schmitt and C. M. Idleman, both of Portland, for respondents.

BEAN, J. (after stating the facts as above).

The law is plain that, where a cause is tried by the court without a jury, the findings of fact have the same force and effect as the verdict of a jury, and will not be disturbed unless it appears that the evidence upon which they were made was not sufficient, as a matter of law, to support them. Good v. Smith, 44 Or. 578, 76 P. 354; Astoria R. Co. v. Kern, 44 Or. 538, 76 P. 14; Smith v. Gevurtz, 135 P. 190; Peaslee v. Gordon Falls Elec. & Mfg. Co., 135 P. 521.

The court found that the original contract had not been annulled. An exchange of defendant's land was made with S.W. Childers about December 14, 1911. It is denied by the answer that the sale was made for $150 per acre. In order to collect the extra commission, the burden of proof is upon the plaintiffs to show that the real property of the defendant was sold for more than $125 per acre, or $41,125.

The controversy arises on account of an exchange of the real estate in question for a house and lot in St. Johns estimated at $7,000, and 105 acres of land known as Estacada land. The defendant claims that $6,000 was the price asked by S.W. Childers for the latter property. It is in regard to this that the contention arises. The plaintiffs' claim is based upon a value of $100 per acre, or $10,500. The defendant asserts that this is a mere fictitious or "padded" value, and that the property at no time was worth more than $6,000. We will consider the testimony of the plaintiffs upon this question. After the plaintiffs had endeavored to make a sale of Gordon's property to Mr. Childers and his associates for cash, and were unable to do so, on November 21, 1911, Messrs. Cook & Clark wrote a letter to the defendant Gordon stating that they would take the Estacada land "that is valued at $6,000" in full for their commission. On December 7, 1911, the plaintiffs wrote defendant Gordon a letter as follows: "Mr. J. D. Gordon, Newberg, Oregon--Dear Sir: Mr. Childers was in to-day and made me the following proposition on your 329 acres: He wants to turn over his 105 acres at Estacada for $100 an acre making $10,500, and a nine-room house on the quarter block at St. Johns for $7,000. He says he will assume the $13,000 mortgage, and give you a mortgage for the balance, which would be $18,850, and put up as security a $12,000 mortgage that he has, providing that you would agree to protect him on the $13,000 for five years from date. * * * As far as Clark and my commission or interest is concerned that can be arranged for us to either take the house at St. Johns or the farm at Estacada. * * *"

E. L Clark, one of the plaintiffs, testified to the effect that they wrote Gordon the terms proposed; that Gordon came and looked at the land and said that he would accept the proposition and trade; that the property was sold for $150 per acre; and that Gordon took all the Childers properties and a mortgage back, amounting in the aggregate to $49,350. On cross-examination, he testified: That the first proposition made by Mr. Childers was that, if he could get plenty of time on it, he would take the land. That Mr. Gordon informed them that he would give Childers all the time he wanted. That the latter then came back with the proposition to turn in the Estacada property for which at that time he wanted $6,000. That afterwards Childers said: "My property is worth as much as the hill land (Gordon's). I am...