Geoghegan v. Dever

• Decision Date: 03 June 1948
• Docket Number: 30320
• Citation: 194 P.2d 397,30 Wn.2d 877
• Parties: GEOGHEGAN v. DEVER et ux.
• Court: Washington Supreme Court

194 P.2d 397

30 Wn.2d 877

GEOGHEGAN v. DEVER et ux.

No. 30320

Supreme Court of Washington

June 3, 1948

Department 2

Action by John W. Geoghegan, a duly licensed real estate broker against Frank M. Dever and Mae Dever, his wife, to recover a real estate commission. From an adverse judgment, the plaintiff appeals.

Judgment reversed and cause remanded with instructions to enter judgment in favor of plaintiff as against Frank M. Dever.

Appeal from Superior Court, King County; James T Lawler, judge.

Ferguson Burdell & Armstrong, of Seattle, and E. A. Geneste, of Friday Harbor, for appellant.

Allen, Hilen, Froude & DeGarmo, of Seattle, for respondents.

JEFFERS Justice.

This action was instituted by John W. Geoghegan, a duly licensed real estate broker, against Frank M. Dever and Mae Dever, his wife, to recover a real estate commission claimed to be due him from defendants. The action is primarily based upon a real estate commission contract, entered into on July 15, 1944, by plaintiff and defendant Frank M. Dever, which contract is as follows:

'Seattle, Wash., July 15, 1944

'To Jno. W. Geoghegan, Licensed Broker, Friday Harbor, Washington

'In consideration of one dollar and services to be performed by you in endeavoring to effect a sale of the following described property, to-wit:

'The Frank M. Dever waterfront property, 85.30 acres, situated on Nelson Bay, Henry Island, San Juan county, Washington; together with all buildings and other improvements thereon.

'Lots 5, 8, 9 and 10, sec. 22, twp. 36 R. 4 W.W.M.

'The undersigned owners of said property, hereby give and grant unto you for the period of six months from date hereof and thereafter until withdrawn by 10 days' written notice, the exclusive right to sell said property, and agree to convey the same, or cause the same to be conveyed in good and sufficient Warranty Deed to the person or persons designated by you. The price of said property is to be $18,000.00 upon the following terms: -- Cash--

'Further agreeing in case of a sale to furnish an abstract of title or title insurance at seller's option, to said property, and to pay you a commission of five per cent. upon the sale price.

'Jno. W. Geoghegan [Sd.]

'Accepted: Frank M. Dever [Sd.] Owner

'Address 2214 26W, Seattle, Wash.'

The complaint alleged in subsance that plaintiff thereafter performed all the conditions of the contract to be done on his part; that during the life of the contract, plaintiff introduced one Lee Cheminant to defendant Frank Dever; that Cheminant was ready, able and willing to buy defendants' property; and that such property was subsequently, on or about June 21, 1946, sold to Lee Cheminant for the sum of $32,000. It was further alleged that plaintiff's commission under the contract would amount to $1,600; that plaintiff has made demand upon defendants for such commission, but that defendants have refused, and still refuse, to pay all or any part of such commission.

Defendant Frank Dever by his answer admitted signing the contract set out in the complaint; admitted that the community property owned by himself and his wife in San Juan county was sold to Lee Cheminant in June, 1946, and that plaintiff has demanded $1,600, which this defendant refuses to pay. Defendant Frank Dever deied the other material allegations of the complaint.

As an affirmative defense, defendant Frank Dever alleged that any and all real estate appearing in the record name of Frank Dever, in San Juan county, was the community property of himself and his wife, Mae Dever; that Mae Dever did not enter into any real estate commission contract with plaintiff, or authorize Frank Dever to enter into any such contract, or ratify or approve any act of his in connection therewith.

It was further alleged that the real estate described in the commission contract was not the real estate owned by Frank Dever and his wife, and that neither defendant Frank Dever, nor the community composed of defendant Frank Dever and his wife, nor Mae Daver, had ever been the owners of lot 5, section 22, township 36 north, range 4 west W. M., nor had any interest therein.

It was further alleged the defendant Frank Dever, after waiting a reasonable length of time for plaintiff to effect a sale, canceled plaintiff's authority, and gave plaintiff both oral and written notice of such cancellation; that thereafter plaintiff abandoned all efforts to effect a sale of the property.

By her answer, defendant Mae Dever stated that she had no knowledge as to the truth of the allegations of the complaint relative to the commission contract, and therefore denied such allegations. She also denied all of the other material allegations contained in the complaint.

As an affirmative defense, she alleged that all the real property in San Juan county standing in the name of Frank Dever was the community property of Frank M. Dever and Mae Dever; that she at no time had any knowledge of the transactions set forth in the complaint; that she never assented thereto, nor did she authorize or empower Frank Dever to execute in her behalf the agreement set forth in the complaint, or approve any of the other acts alleged in the complaint; and that in so far as defendant Mae Dever and the community were concerned, she disaffirmed and refused to be bound by any of the purported acts of Frank Dever alleged in the complaint.

Plaintiff by his reply denied the material allegations of the affirmative matter set up in the answers of both defendants, except he admitted that the defendants have never been the owners of lot 5, section 22, township 36 north, range 4 west W. M., such description appearing in the commission contract, as set forth in the complaint, as a portion of the property therein listed, and which, by mutual mistake and error of the parties thereto, was so described, whereas the description as to that particular lot should have been lot 5, section 23, township 36 north, range 4 W. W. M.

The cause came on for hearing Before the court on April 8, 1947, and after testimony had been received, the court, on April 14, 1947, entered a judgment dismissing the action. The judgment was entered upon the theory advanced by defendants, that the contract was void and could not be reformed. Plaintiff filed motions for judgment notwithstanding the decision, or in the alternative for a new trial, which motions were denied, and this appeal by plaintiff followed.

Appellant states that the court erred in rendering its oral decision against appellant; in dismissing the action; in denying appellant's motions for judgment notwithstanding the decision or for a new trial; and in entering its decree dismissing the action.

The material facts appearing in the record may be stated as follows: In 1944, respondents, Frank Dever and Mae Dever, were the owners of certain community real estate located in the San Juan Islands, which they had acquired in 1927. The property is situated on Henry Island, San Juan county, Washington, and is described as follows: Lots 8, 9 and 10, section 22, township 36 north, range 4 west W. M., and lot 5, section 23, township 36 north, range 4 west W. M. Appellant, John Geoghegan, a duly licensed real estate broker, with offices at Friday Harbor, Washington, became interested in this property, and asked Frank Dever for an exclusive listing on it. Dever, who was passing through Friday Harbor at the time, orally agreed to give appellant an exclusive listing. Appellant prepared and mailed to Dever a written contract covering the oral listing agreement, which written agreement Frank Dever signed and mailed back to appellant. The contract which Frank Dever signed is the one hereinBefore set out. Mr. Dever told his wife about signing the contract some days later. As stated, Mae Dever did not sign it.

The description of the property in the commission contract is inaccurate, in that all the lots are described as being in section 22, whereas in fact lot 5 is located in section 23. Also, the designation 'N', which indicates that the township is in the north range, was omitted. The description of the property as set forth inaccurately in the contract was obtained over the telephone by Geoghegan from the office of the county treasurer at Friday Harbor. Appellant did not learn of the error in the description until the filing of the answer or shortly Before trial. When Dever signed the contract, he was under the impression that the real estate therein described was his tract of land on Henry Island, and was not aware of the mistake. Shortly after the execution of the contract, respondent mailed appellant a key to the house on the property. Mr. Dever apparently thought that the exclusive listing agreement automatically terminated or became an open listing at the end of six months, and he gave another broker, Eastman, a two weeks exclusive listing in the early part of 1945, and an open listing to still another broker in the spring of 1945.

In the summer of 1945, Geoghegan took a Mr. Moffett to the Dever land on several occasions, in an effort to sell him the property, and on one of these trips, Dever was with them. During this period appellant corresponded with Dever regarding his efforts to interest Moffett in the property. In a letter written by Dever to appellant on or about August 7 1945, respondent Dever referred to the exclusive listing agreement as follows: 'In regards to your commission, what would it be in a case like this where I am taking part in the sale of it. When your exclusive contract run out I quoted a price of $20,000 to two Seattle real estate firms who have been working on it quite a lot on that basis, but knowing what I have put in the place I have been indifferent about whether it is sold now or not, because I feel that just after...