Good v. Smith

• Decision Date: 18 April 1904
• Citation: 76 P. 354,44 Or. 578
• Parties: GOOD v. SMITH.
• Court: Oregon Supreme Court

76 P. 354

44 Or. 578

GOOD v. SMITH.

Supreme Court of Oregon

April 18, 1904

Appeal from Circuit Court, Multnomah County; M.C. George, Judge.

Action by George Good against W.K. Smith. Judgment for plaintiff and defendant appeals. Affirmed.

This is an action by a real estate broker to recover his commission. It is alleged in the complaint, in substance, that in February, 1902, the defendant was the owner of a certain tract of land in the city of Portland, known as the "Multnomah Box Factory," and also the owner of an undivided one-half interest in another tract adjoining the box factory on the south, known as "Smith Bros.' Property," the remaining one-half interest in the latter tract being owned by Walter V. Smith and the heirs at law of Preston C. Smith, deceased, in equal parts; that defendant was also the owner of certain personal property in his own right, and, in connection with Walter V. Smith and Susan W Smith, was the owner of certain other personal property, all situate and being upon the real property referred to; that on or about the date mentioned the defendant employed the plaintiff as his agent for the purpose of selling his interest in the property, both real and personal, for the sum of $48,000, and agreed to pay him a commission of 2 1/2 per cent. on such sale; that it was understood that defendant's interest in the property was to be sold in conjunction with that of the other owners, at an aggregate price of $65,000, free from incumbrances and subject to the immediate possession of the purchaser; that plaintiff's employment was to continue until the interest of the heirs of Preston C. Smith could be secured by proper proceedings in the probate court, or until it could be determined whether such interest could be acquired in that manner; that plaintiff duly performed all the terms of the contract on his part, and produced a purchaser, ready, able, and willing to take the property on the terms agreed upon, but that defendant, in violation of his contract, refused to sell his interest therein free and clear of all incumbrances and subject to immediate possession by the purchaser, although the interest of the heirs of Preston C. Smith had been acquired under an order of the probate court, and satisfactory arrangements had been made with the other parties interested in the property, so that the sale could have been completed, had defendant complied with his contract. The answer consists of a specific denial of all the allegations of the complaint except the ownership of the property. By agreement of the parties, the cause was tried by the court without the intervention of a jury. The court found the facts, in substance, as alleged, and, as a conclusion of law, that the plaintiff was entitled to recover from the defendant the sum of $1,200 and his costs and disbursements. From the judgment entered thereon the defendant appeals assigning numerous errors, which may be grouped as follows (1) The admission in testimony of certain conversations and contracts between the plaintiff and other persons not in the presence of the defendant; (2) permitting the complaint to be amended on the trial by inserting the name of Albert T. Smith as one of the joint owners of a part of the personal property mentioned therein; and (3) the cause of action alleged was not proved, and the findings are not supported by the testimony.

Wirt Minor, for appellant.

C.E.S. Wood and S.B. Linthicum, for respondent.

BEAN J. (after stating the facts).

There was evidence tending to show about this state of facts: In February, 1902, the plaintiff, who is a real estate broker in Portland, had a customer in the Western Lumber Company for some water-front property. He called at the office of the defendant to ascertain the selling price of the property mentioned in the complaint, supposing at that the time that he was the owner thereof. After some negotiations, defendant, without disclosing the fact that he was not the sole owner, agreed to sell the entire property, personal and real, for $65,000, and to pay plaintiff a commission of 2 1/2 per cent.

if the sale was effected. The plaintiff advised Mr. Ayer, the president of the lumber company, of the price at which the property could be secured; and he agreed to take it for his company, if it could be conveyed free from incumbrances, and with the right to immediate possession. About the time however, the plaintiff learned that the defendant did not own the whole of the property, but that Walter V. Smith and the Security Savings & Trust Company each owned or had a deed for an undivided one-fourth of a certain portion of it. He thereupon entered into negotiations with Smith and the trust company, which resulted in an agreement by them to sell their interests for $8,500 each. He again called upon the defendant, and told him that the interests of the other owners of the property could not be purchased for less than $17,000, and, as the prospective buyer would not pay to exceed $65,000 for the entire property, the sale must fall through, unless he would take $48,000 for his interest. After talking the matter over at some length, the defendant finally agreed to take $48,000 for his interest in the property, to pay the plaintiff 2 1/2 per cent. commission, and to furnish an abstract; it being understood at the time that the prospective purchaser would not take the property unless he could acquire the entire title. The plaintiff asked for a written option from the defendant, but he refused to give it, saying his word was as good as his bond. The plaintiff then wrote a memorandum of the agreement or understanding had at the time, and read it over to the defendant, who said it was correct. This memorandum is as follows: "Portland, Oregon, 14 February, 1902. I will sell for $48,000 ...