Elmendorf v. Golden

• Decision Date: 29 March 1905
• Court: Washington Supreme Court
• Parties: ELMENDORF v. GOLDEN.

80 P. 264

37 Wash. 664

ELMENDORF v. GOLDEN.

Supreme Court of Washington

March 29, 1905

Appeal from Superior Court, Spokane County; Geo. W. Belt, Judge.

Action by Frederick E. Elmendorf against Thomas Golden. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Munter & Jesseph and Post, Avery & Higgins, for appellant.

Danson & Huneke, for respondent.

CROW J.

Some time prior to the making of the sale hereinafter mentioned appellant, Golden, listed certain property with respondent Elmendorf, a real estate broker, for sale at the price of $5,000, agreeing to pay a commission of 5 per cent. Respondent immediately advertised the property, and about the middle of November, 1903, one Mrs. Fanny Goldstein, having seen the advertisement, called on respondent to make some inquiries, and the property was shown to her by respondent. She did not at that time disclose her name but stated that she wished to consult a friend in whom she reposed confidence in business matters, and that she would see respondent again at an early date. Respondent immediately notified appellant of this interview, and described Mrs. Goldstein with such accuracy as to enable appellant to know her in the event of her calling upon him. A few days later Mrs. Goldstein called upon respondent, gave him her name, stated that her friend to whom she had referred was absent from the city, but that she had another friend whom she would consult in regard to the advisability of purchasing, and promised to see respondent again. This interview was also promptly reported to appellant by respondent. It is undisputed that Mrs. Goldstein did consult the other friend, a Mr. Ostroski, who, upon thus learning of the property, examined it in company with one Sidney Rosenhaupt, another real estate broker, not theretofore employed by appellant. Rosenhaupt and Ostroski examined the property on the Sunday after the last interview of respondent with Mrs. Goldstein. On the following Monday, Rosenhaupt and Ostroski secured an interview with Mr. Golden, in which they agreed to purchase the property from him for $5,000 in the name of Mr. Rosenhaupt, who was to receive a commission of 5 per cent. At that time Mr. Rosenhaupt paid appellant $150 cash, and agreed to close the deal as soon as money was received from the East. On the same Monday appellant called upon respondent and notified him that he was selling the property to Mr. Rosenhaupt. Respondent immediately warned appellant that Rosenhaupt had his customer, Mrs. Goldstein, and that, if the property was sold to her, he would hold appellant for his commission. Appellant testified that he made inquiry of Mr. Rosenhaupt as to whether he was buying the property for Mrs. Goldstein, and that Rosenhaupt simply said, 'I am buying that property.' After receiving the $150, and before the deal was fully closed, appellant called upon one J. M. Corbet in regard to a mortgage which Corbet held upon the property, and Corbet testified that at said time appellant stated that Mr. Rosenhaupt was buying the property for Mr. Elmendorf's customer. This testimony is not positively denied by appellant. About 10 days later the deal was closed with Rosenhaupt, appellant making him a deed for the real estate. Rosenhaupt immediately conveyed the property to Mrs. Goldstein. The money paid for the real estate was undoubtedly furnished by Mrs. Goldstein. The deeds were immediately recorded, and appellant, in his testimony, says: 'When I went home that night I read in the papers, where I seen it was from Golden to Rosenhaupt for $5,000, and from Rosenhaupt to Mrs. Goldstein for $5, and I seen that there was something in it, as Elmendorf had told me.' Then appellant denied that he had anything to do with the 'game,' as he termed it. Respondent immediately notified appellant that he would hold him for his commission. Appellant declined to pay, and this action was commenced to recover the same. The complaint, in addition to other allegations, contained the following: 'That said Thomas Golden and wife conveyed said property to one Sidney Rosenhaupt, which conveyance was colorable only, and intended for the benefit of Fanny Goldstein, and was made to said Rosenhaupt in trust for her, and said Rosenhaupt at once, and as a part of the same transaction, and on the 2d day of December, 1903, conveyed said property to said Fanny Goldstein.' The answer consisted of denials only. Upon trial the jury rendered a verdict for $250 in favor of respondent, and, a motion for a new trial being denied, judgment was entered, and this appeal is taken.

Appellant makes several assignments of error, which, however, cover only the following points: (1) That the court erred in denying appellant's motion for a nonsuit at the close of respondent's evidence, and also in denying defendant's challenge to the sufficiency of the evidence, and motion for judgment at the close of all of the evidence in the case; (2) that the court erred in giving certain instructions to the jury.

In order that a broker may be entitled to recover compensation for his services, it is a well-established principle of law that two facts must...