Fisk v. Henarie

• Decision Date: 11 January 1886
• Parties: FISK v. HENARIE and others.
• Court: Oregon Supreme Court

9 P. 322

13 Or. 156

FISK v. HENARIE and others.

Supreme Court of Oregon

January 11, 1886

Geo. H. Williams and Wallace Mount, for appellant.

James K. Kelly and Arthur L. Frazer, for respondents.

THAYER J.

The appellant commenced an action in the court below against the respondents to recover the sum of $60,000 commissions alleged to have been earned in procuring a purchaser of lands owned by respondents, situated in the counties of Wasco Grant, and Baker, in this state, consisting of a tract of 600,000 acres, and known as "The Dalles Military Road Company's Land Grant." He alleged in his complaint in said action that on and prior to October 1, 1881, D.V.B Henarie, Eleanor Martin, James V. Martin, Genevieve Martin Peter D. Martin, Walter S. Martin, Andrew D. Martin, Thomas S. Martin, Edward Martin, S.A. Francis, and M. Wilcox, wife of J.D. Wilcox, were the owners of said tract of land, and that in December, 1880, they, said owners, made a contract with him that, if he would procure a purchaser for said lands at the rate of one dollar per acre, he should receive as a compensation therefor the sum of 10 per cent. of said purchase price; that he did procure Leigh, Payne & Co., of Chicago, Illinois, as purchasers, who were accepted as such, and that a contract was entered into October 1, 1881, in which it was agreed that said Leigh, Payne & Co. would take the said lands, and pay therefor the sum of $600,000; that thereafter, the respondents becoming the owners of said lands, the said agreement of October 1, 1881, was modified on the nineteenth day of September, 1882, by the execution of a new agreement between the said Leigh, Payne & Co. and the respondents, whereby the said company agreed to pay for the said lands the said sum of $615,000, on terms satisfactory to the respondents; that for reasons unknown to the appellant the sale was not consummated, whereupon the appellant, about January or February, 1883, procured one Robert Bell, banker, of the city of Portland, Oregon, to make respondents a proposition to purchase said lands upon the terms and conditions specified in said agreement with said Leigh, Payne & Co., and, as an inducement to said respondents to accept him, said Bell, as such purchaser, he offered to pay said respondents $10,000 of the purchase price cash down, upon the execution of an agreement with him by them for the sale of said property, which the appellant alleged were more favorable terms than those contained in the former modified agreement; that the said Bell was then, and ever since had been, able, and was then ready and willing, to purchase said property upon the terms proposed by him; that the respondents Wilcox, Edward Martin, and Thomas S. Martin, who lived in Oregon, were willing to accept the offer of said Bell to purchase said property, but that said Henarie, Donohue, and Eleanor Martin, who resided in San Francisco, declined it for no other reason, as appellant alleged upon his information and belief, than because they were induced to believe, by outside parties, that they could obtain a higher price for said land; that he was fully authorized to contract for the sale of said property on the terms specified in said agreement with said Leigh, Payne & Co., and under such authority he procured for such owners a purchaser therefor in the said Robert Bell, in addition to the procurement of said Leigh, Payne & Co. as such purchasers; and that he performed on his part all things necessary and proper to enable said respondents to sell said property upon the terms and conditions which they prescribed for its sale, and that said respondents wrongfully and willfully, and without any good reason or just cause, refused to sell said property after appellant had procured purchasers therefor as aforesaid, and wholly neglected and refused to perform their said contract with appellant, and still refuse so to do, and that the sale of said property was not completed on account of the refusal and neglect of respondents to perform upon their part. The respondents in their answer denied that any such contract as alleged was ever made by them or either of them; that, on the contrary, some of the respondents made a parol agreement with the appellant that if he would procure a purchaser for said lands at the price of $600,000, who would pay for the same cash, or part in cash, and part in satisfactory securities, he should be entitled to receive a pro rata portion of said cash, or of said cash and securities, at the time when the same were received, of 10 per cent. of the amount or security so received, as a commission, payable exclusively out of the same, provided that such purchaser would pay, at the time of agreeing to purchase the property, such sum of money, as a prepayment to bind the bargain, as would be satisfactory for that purpose to said owners. Admitted that said Leigh, Payne & Co., on the fourth day of October, 1881, entered into an agreement with some of the respondents, (but not with said Donohue, who then had no interest in the said lands,) whereby the said Leigh, Payne & Co. would purchase and pay for said property $600,000, portions of which were to be paid at stated times until the whole amount of $600,000 was paid, when the property should be conveyed to them; that Leigh, Payne & Co. failed to pay any part of the $600,000, or perform any of the conditions of their agreement; that the said modified contract was entered into between respondents, including Peter Donohue, and said Leigh, Payne & Co., wherein the latter company agreed to pay respondents said $615,000, at certain times mentioned in the contract, which they wholly failed to do; that the appellant induced the respondents to enter into the contract, knowing at the time that said Leigh, Payne & Co. were unable to purchase and pay for the property; that appellant himself was interested as a partner with said Leigh, Payne & Co. in said purchase, and was to share in the profits that might be made by said firm, in case they could sell or dispose of the said property, at a profit, to any other person or persons; and that the said parol contract was made in the state of California, where the respondents then and ever since have resided; and that by the law of said state a parol agreement in such case was void unless the same, or some note or memorandum thereof, be in writing. The appellant replied to the new matter of defense set forth in answer, denying all the material allegations thereof. The issues so made came on for trial before said court and a jury duly impaneled. The appellant on said trial offered in evidence and read to the jury portions of a deposition of said D.V.B. Henarie, which had theretofore been taken in the case upon the part of the respondents. Among other interrogatories and answers of said witness read to the jury were the following:

"Interrogatory 5. Did you, in connection with any other persons, ever make an agreement by which you employed the plaintiff, James H. Fisk, to act as your agent or broker to sell lands? If you did so employ him, when was that contract made? Where was it made? And who all were parties to it? Answer. I never did, either by myself or in connection with any other persons, employ plaintiff. I merely gave to him the price at which I and other owners of said lands were willing to sell them, with the promise and offer that, if he could effect the sale of them at the price of one dollar an acre, out of the moneys received from said sale, we would pay him ten per cent. commission. But no money was to be paid him except out of the proceeds of the sale effected by him. It was understood that this proposition, which plaintiff accepted, was in no way to interfere with our selling the lands to other parties, if we could, without his help, in which case he was to receive no commission. If that proposition and its acceptance constituted a contract or agreement, it was made in San Francisco, California, in or about the month of October, 1880, and plaintiff was employed then as agent or broker to make the sale of the lands whenever he could, on the conditions I have mentioned. The parties to it were the owners of the land--myself and the Edward Martin estate, represented by Mrs. Eleanor Martin, administratrix--on one part, and plaintiff on the other part. No other contract or agreement with plaintiff or proposition and acceptance was ever made by us for the parties plaintiff and defendant."

The said witness further answered:

"The proposition I have stated, which was an offer as before mentioned, was by parol. It was not reduced to writing. There was no written contract."

The appellant then offered himself as a witness in the action and was asked by his counsel--after his having stated that he lived in Portland, was an assayer by profession, and in the years 1880-83 was engaged in negotiating sales of land; knew the respondents in the fall of 1880, and at that time talked with them in San Francisco, California, about the lands in question--the following question: "State what conversation you had, and what, if any, agreement was made between you and the respondents in relation to your procuring a purchaser for the lands described in the complaint, and what, if any, commissions you were to have therefor." This question was objected to by the respondents' counsel as immaterial and incompetent, and the objection sustained by the court, and an exception saved to the ruling. The appellant's counsel then offered in evidence an extensive correspondence which took place between the appellant and the said D.V.B. Henarie, concerning the sale of the said lands, which counsel claimed was evidence of a contract for the employment of the appellant to procure a purchaser of the lands at the price of one dollar an acre, and...