Duncan v. Parker

• Decision Date: 17 August 1914
• Docket Number: 11147.
• Parties: DUNCAN et al. v. PARKER et al.
• Court: Washington Supreme Court

142 P. 657

81 Wash. 340

DUNCAN et al. v. PARKER et al.

No. 11147.

Supreme Court of Washington

August 17, 1914

Department 2. Appeal from Superior Court, Spokane County.

Action by Mel G. Duncan and another against Percy F. Parker and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Zent Powell & Redfield, of Spokane, and Lovell & Davis, of Ritzville, for appellants.

J. S Workman, of Eugene, Or., and Geo. D. Lantz, of Spokane, for respondents.

FULLERTON J.

This is an appeal from a judgment of nonsuit entered in an action brought by the appellants against the respondents to recover commissions claimed to be due for the sale of certain real and personal property. In April, 1911, the respondents owned a tract of land situated in Benton county, on the line of the North Coast Railway Company, which they had caused to be platted into a town site, under the name of Benton City. The record title to this property stood in the name of the respondent Percy F. Parker. At the same time the respondents Pitman and Woods severally owned desert land claims situated near the town site. The respondents had also organized a corporation for supplying the town of Benton City and the immediate surrounding county with water for domestic and irrigating purposes; the capital stock of such corporation being owned by the respondents. On April 14, 1911, the respondents, acting through Parker, the holder of the record title, entered into a contract with the appellants Mel G Duncan and Oliver Dean and the respondent Elza Dean, as real estate brokers, by the terms of which the brokers undertook to sell for the respondents the town-site property at scheduled prices for a commission based on the purchase price of each lot or parcel of land sold. The brokers entered upon the performance of the contract, and expended considerable sums of money in advertising the property and exhibiting it to prospective purchasers, but were unable to dispose of it sufficiently fast to satisfy either themselves or the owners. The expense incident to carrying the property had become quite a burden upon the owners, and they became extremely anxious to dispose of it to some person able financially to relieve them of further expenditures. In the early part of July, 1911, the respondent Pitman, as the representative of the owners, called upon the brokers and discussed with them the possibility of disposing of the entire property in bulk; that is, the desert land claims and the stock in the water company, as well as the town-site property. Several persons were mentioned in this conversation as persons who might be induced to take over the property, among whom was one P. Mullins and one S. J. Harrison, and a tentative agreement was entered into by which the brokers undertook to dispose of the property in bulk for a commission of $5,000 in case of a satisfactory sale. The terms of this contract were afterwards confirmed by letter from Pitman to Duncan, each representing his respective associates, which letter we quote in full:

'July 8th, 1911.

'Mr. Mel. G. Duncan, 305 So.2d St., San Marco Apts., North Yakima, Wash.--Dear Sir: I am inclosing herewith a letter for the purpose of special arrangement made with you at the time of my call at your office, a few days ago. This will, I think, serve your purpose nicely, as I have endeavored to cover the entire Benton City undertaking, including the 320 acres of orchard lands, very fully.

'You are authorized to undertake a sale of the entire property on the terms set out in the letter above referred to, with Mr. P. Mullins and his friends, and also with Mr. Harrison and associates. I would not like for you to go outside of these parties without first conferring with us in relation to the matter. My idea is to restrict your canvass to parties who are able financially, and who would be satisfactory purchasers in case you can accomplish a deal.

'You are to understand that you will not be rigidly bound by the figures set out in the letter. If you can interest either combination of gentlemen named upon lower figures (provided, of course, they are not too low), we will entertain a proposition upon any terms which will provide sufficient cash payment to reasonably guarantee the sale.

'I believe you can afford to give special and personal attention--all, of course, in a confidential way--to the working up of a sale with both of these parties, simultaneously. It seems to me that a trip to the Sound, for the purpose of seeing Mr. Harrison, should be immediately in order, and that your negotiations with each combination should be framed as far as possible upon the assumption that the present owners are going to make an immediate turn of the property; and if your prospective purchasers desire to interest themselves at all, they should do so without delay.

'In case you make a sale, either at the figures named or any lesser price acceptable to us, we will pay you a flat commission of $5,000, the commission to be payable one-half from the first payment if the same is less than one-third of the consideration, and the remainder pro rata from the payment of the succeeding 25 per cent. of the consideration paid upon the property. In case there should be more than one-third of the consideration paid in cash, the total commission of $5,000 will be deducted from the cash payment.

'I am sending, under separate cover, some photographs and other data which will assist you in making a clear presentation of the property, and suggest that you add thereto such maps, advertising matter, etc., from your own collection as will complete the same in the most attractive manner.

'Very truly yours, F. L. Pitman.'

The inclosure not specifically mentioned in the letter was a general letter descriptive of the property, setting forth its situation, its advantages as a town site, and the terms on which it could be purchased. The brokers immediately took up the question of the sale of the property with the parties named, making two trips to the Sound to interview Harrison. While the negotiations with Harrison were in progress, he was seen by Pitman, and the matter of the purchase talked over between them. After one of these interviews, Pitman wrote Elza Dean an undated letter, but postmarked August 2, 1911, in which he used the following language:

'Sorry I failed to meet you. Don't say anything to Mr. Harrison regarding Benton. Also tell Mel to pass him up for the present. This I think important.'

After the receipt of this letter the brokers ceased their efforts to close a sale with Harrison, and the negotiations thereafter with him were conducted entirely by the owners. These negotiations resulted in a contract of sale to Harrison, bearing date of October 2, 1911, the material parts of which are as follows:

'This agreement * * * witnesseth, that for and in consideration of the sum of seventy-two thousand, five hundred and one ($72,501.00) dollars, receipt of one dollar of which is hereby acknowledged, the remainder to be paid as hereinafter set out, the parties of the second part hereby sell to the parties of the first part, all of the unsold lots, blocks and parcels of land of said town site as hereinafter enumerated, upon list marked 'Exhibit A' hereto attached and made a part hereof together with all of the stocks of the Benton City Company, * * * and all of the right, title and interest of the said Charles E. Woods and Sadie I. Woods, his wife, and F. L. Pitman and M. E. Pitman his wife, in and to said desert claims above described, together with the reservoir, pipe lines, ditches and improvements thereon, and the parties of the first part agree to purchase the same under the conditions herein and at the price above stated.

'It is agreed that the title of said property shall be transferred on or before October 15th, 1911, free and clear of all incumbrances to the Spokane & Eastern Trust Company, or such person in their employ as shall be designated by said trust company as trustee, to be held in trust for the benefit of the said parties of the first part, and with full power and authority in said trustees to act for parties of the second part in all matters pertaining to said trust, and the carrying out of the terms, intent, and purposes of this contract, and to hold said title until the consideration hereunder shall have been paid in

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