Godefroy v. Hupp

Decision Date17 November 1916
Docket Number13394.
Citation160 P. 1056,93 Wash. 371
CourtWashington Supreme Court
PartiesGODEFROY v. HUPP et al.

Department 1.

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by W. D. Godefroy, transacting business as the Northern Pacific Land Exchange, against Fred R. Hupp and Ella Hupp. Judgment for plaintiff, motion for judgment non obstante verdicto and for new trial overruled, and defendants appeal. Affirmed against defendant Fred R. Hupp and the community consisting of Fred R. Hupp and Ella Hupp.

Peacock & Ludden, of Spokane, for appellants.

McCarthy Edge & Davis, of Spokane, for respondent.

ELLIS J.

Action by a broker for services rendered in an exchange of personal property for real estate. There was evidence tending to establish the following facts: About December 1, 1913 defendants were the owners of certain real property, and also of 100 shares of the capital stock of Holland-Horr Mill Company, a corporation, as their community property. Defendant Fred R. Hupp employed plaintiff to make a sale or exchange of this property, or any part of it, agreeing to exchange any portion of it, either the stock alone or the real property alone or some of the real property and some of the stock, for other property, preferably a stock ranch or wheat farm. Hupp gave to plaintiff a list of the property, placing separate valuations on each item. The valuation placed on the Holland-Horr Mill Company stock was $800 a share. He promised to pay plaintiff a commission for making such a sale or exchange. For a number of months thereafter plaintiff exerted himself to make a sale or exchange of this property and different parts of it. Different negotiations were had with Hupp's approval, involving prospective sales or exchanges of the stock alone. He was willing to sell or exchange the stock alone. About four months after the property was listed with him, plaintiff employed one Mulcahy as an assistant in his office, agreeing to pay him $1 a day and divide commissions on sales or exchanges of property in which he might assist. Mulcahy immediately wrote to various persons, soliciting business. One of these, Schuler, a broker of Minneapolis, Minn., answered, returning a list of Minnesota properties, among which was the Minnesota Loan & Trust Company building in Minneapolis, owned by the Franklin Avenue Investment Company, a corporation. The value of this building was placed at $350,000. There was a mortgage upon it for $155,000. Mulcahy submitted this list to defendant Hupp who expressed himself as willing to exchange his property for this building. He made and delivered to Mulcahy a new list of his property, again placing a value of $800 a share on the one hundred shares of Holland-Horr Mill Company stock, and added a block of stock of the Dakota Oil Sands Company, a corporation owning certain oil lands at Calgary, Alberta. On this stock he placed a valuation of $5,000. Just here arises the first serious conflict in the evidence. Mulcahy testified that he then told Hupp that in case of an exchange the commission on the Holland-Horr Mill Company stock would be ten per cent. and more than ten per cent. on the Dakota Oil Sands Company stock. Hupp denied that at this time any mention was made of the commissions. After this for some time Mulcahy corresponded with Schuler, receiving from him photographs of the Minneapolis building, statements, letters, and telegrams, which Mulcahy submitted to Hupp. Among these was a letter from Schuler in part as follows:

'Minneapolis, June 5, 1914.
'Dear Geo: I have your letter in answer to my wire. The deal can be put through something like this:

Cash .....................

$ 40,000

H Horr Stk .................

50,000

Adams River ................

50,000

Lincoln Co...................

5,000

Corbin Park ................

18,000

Castor Alta .................

8,000

Hayden Lake .................

5,000

St. Joe .....................

5,000

1/8 Int. Calgary Oil Co ....

15,000

--------

$196,000

'He says Bradstreet can report on the properties in five days if they want to trade. * * *
'Yours truly,
Henry Schuler.'

Mulcahy testified that he submitted this letter to Hupp, and that thereafter throughout the negotiations the Holland-Horr Mill Company stock was valued at $500 a share, instead of $800 a share, as included in Hupp's original list. About the middle of June, 1914, Hupp, without notice to plaintiff or Mulcahy, went to Minneapolis and concluded the exchange. At this point arises the second serious conflict in the evidence. Both Mulcahy and plaintiff Godefroy testified that on Hupp's return from Minneapolis he admitted to them that he had included in the exchange 90 shares of the Holland-Horr Mill Company's stock at a valuation of $500 a share, and the oil stock at a valuation of $15,000. Hupp denied making this statement, and testified, in substance, that when he exchanged his real estate for the Minneapolis building he threw in the stocks without placing upon them any specific values. Upon Hupp's return to Spokane after concluding the deal, plaintiff demanded from him a commission on the entire deal, including the stock and the real estate. Defendant refused to pay any commission on the ground that plaintiff had no contract in writing. This action followed. A writ of attachment was sued out and levied upon certain real estate as the property of Fred R. and Ella Hupp. At the trial defendants objected to the introduction of any evidence upon the ground that the contract pleaded was within the statute of frauds, and at the close of plaintiff's evidence moved for a nonsuit upon the same ground. The motion was denied. The jury returned a verdict for plaintiff in the sum of $3,750. Defendant moved for judgment non obstante veredicto, and also for a new trial. Both motions were overruled. Judgment was entered upon the verdict, and defendants appealed.

Appellants contend: (1) that the contract for commissions was indivisible and, being oral, was subject to the ban of the statute of frauds because it included real estate; (2) that the judgment against defendant Ella Hupp individually was, in any event, erroneous; (3) that the court erred in carrying the attachment into the judgment; (4) that the court erred in opening the case for admission of evidence and in excluding evidence offered in rebuttal of such evidence.

Whether respondent through Mulcahy was the procuring cause of the exchange as finally consummated was plainly a question for the jury. That they produced the person ready, able, and willing to make the exchange cannot be questioned. The fact that the exchange as finally concluded did not embrace quite all of the real estate included in appellants' list as left with respondent, and did include certain machinery, a team, harness, and wagon not included in that list, is immaterial. It is clear that in the main the exchange was concluded along the lines contemplated in Mulcahy's correspondence with Schuler, which was submitted to Hupp and led to his going to Minneapolis and closing the deal. In such a case, if the contract for the commissions had been in writing, there can be no question but that respondent would have had a maintainable cause of action for commissions on the entire transaction. Price v. Partridge, 78 Wash. 362, 139 P. 34.

But the contract for the payment of the commissions, being oral, was void so far as the real estate was concerned. Rem. & Bal. Code, § 5289. It is also clear that if that contract was not divisible, it was subject to the ban of the statute in its entirety so as to preclude a recovery of any commission even for the exchange of the stock. In considering this question we must not confuse the two contracts. The primary question here is not whether the contract of exchange as finally consummated between Hupp and Franklin Avenue Investment Company was a divisible contract, but whether the agreement, creating the agency as between Hupp and Godefroy, and to pay the commissions, was divisible. It is the latter agreement upon which this action rests. Whether the contract was divisible is a question of law, dependent upon the terms of the contract. What those terms were is a question of fact, dependent upon the evidence.

On the latter question it must be remembered in this case, as in all others, that, in passing upon the sufficiency of evidence whether challenged by motion for a nonsuit or by motion for judgment non obstante veredicto, it is only when the court can say as a matter of law that there is neither evidence nor reasonable inference from evidence to sustain the verdict that either of such motions can be...

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