Elsom v. Sanders

• Decision Date: 05 October 1922
• Docket Number: 17272.
• Citation: 209 P. 842,121 Wash. 391
• Court: Washington Supreme Court
• Parties: ELSOM v. SANDERS.

209 P. 842

121 Wash. 391

ELSOM v. SANDERS.

No. 17272.

Supreme Court of Washington

October 5, 1922

Department 2.

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Action by R. W. Elsom against M. E. W. Sanders. From a judgment of dismissal, plaintiff appeals. Affirmed.

McCarthy, Edge & Lantz, of Spokane, for appellant.

Turner, Nuzum & Nuzum, and Richard B. Harris, all of Spokane, for respondent.

MAIN, J.

This action was brought to recover a commission on the sale of real estate. The trial resulted in a judgment dismissing the action, from which the plaintiff appeals.

On March 8, 1920, the respondent, by written instrument, gave to the appellant 'the exclusive right to sell' the property therein described during the time specified. Subsequently the respondent, the owner, sold the property; the appellant was not the procuring cause of the sale. While there is a dispute as to whether the sale by the respondent was made within the time covered by the contract giving to the appellant the exclusive right to sell, it will be assumed, but not decided, that the sale took place within the time specified in the contract. This case is controlled by the case of Sunnyside Land & Investment Co. v. Bernier (Wash.) 205 P. 1041. In that case the listing contract gave to the plaintiff the 'exclusive right to sell' the property described therein, covering a certain period of time. Within the time mentioned the defendant, the owner, sold the property, and the plaintiff claimed a right to his commission under the contract. It was there held that, since the plaintiff was not the procuring cause of the sale, he did not have a right to a commission when the property was sold by the owner, even though the written listing gave to the plaintiff the exclusive right to sell.

The distinction between this case and the recent case of Robertson v. Wilson (Wash.) 209 P. 841, is that here the property was sold by the owner himself, while there the property was sold through another agent.

The judgment will be affirmed.

PARKER, C.J., and HOLCOMB, MACKINTOSH, and HOVEY, JJ., concur.