Goodrich v. Rogers

• Decision Date: 02 September 1913
• Citation: 75 Wash. 212,134 P. 947
• Parties: GOODRICH v. ROGERS et al.
• Court: Washington Supreme Court

134 P. 947

75 Wash. 212

GOODRICH v. ROGERS et al.

Supreme Court of Washington

September 2, 1913

Department 1. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by W. D. Goodrich against Walter L. Rogers and another. From a judgment in favor of plaintiff, defendants appeal. Reversed and remanded.

E. B Powell, Cannon, Ferris & Swan, and John M. Cannon, all of Spokane, for appellants.

R. L Edmiston, of Spokane, for respondent.

CHADWICK J.

Plaintiff brought this action to recover a commission on the sale of certain real property owned by the defendants. The contract of listing is evidenced by a card. It is partly printed and partly written.

'Number of Acres: 92 Section _____ Township 44 Range _____ County Spokane Distance to Railroad _____ Nearest Town 5 miles N.E. Colbert. Acres Cultivated 84 Suitable for Cultivation 84 Timber 8 Orchard 29, 22 bearing, commercial, 7 R. B. and Wag. for home use. Small fruit _____ Timothy Land _____ Water, Well, abundance of water, piped to orchard, in house and barn, windmill and storage tank. House (Describe) 6-room modern. Outbuildings, Large barn & 2 packing houses, and chicken house & machinery go with place. Fenses Yes. Distance to school, 3-4 mile. Church _____ Remarks. On Rural Route, Telephone. All good land. Will sell 42, which includes bearing orchard and buildings at $12,000.'

'Mortgage $2300 When due 1914, 1000. Bal. 1915 Rate of Interest 7% To be assumed _____ Price $20,000 Net _____ Commission 5% Terms _____ Will Trade for _____ Will take city property to $500 as part payment, and take 1/2 of crop each year, purchaser to pay int. Owner _____ Address: Mrs. W. L. Rogers, Colbert, R. R. No. 1. Date of Entry July 13th, 1912.'

The writing is not signed, there is no promise to pay a commission, nor is the land described.

Plaintiff thereafter interested a customer who was willing to buy, and the parties thereupon drew up and signed a contract of sale. No mention of the payment of a commission is made in this contract. Some dispute arose as to the terms of the latter contract, defendants insisting that plaintiff had imposed upon them when reducing it to writing. In consequence thereof they repudiated the contract and sold the property to a third party. Plaintiff brought this action, and from a judgment in his favor defendants have appealed.

The original memorandum is not set out in the complaint, but what purports to be its legal effect is fully pleaded. Plaintiff alleges that the contract was in writing. The land is described in the complaint by proper legal description, and it is alleged that defendants promised in writing to pay a commission of 5 per cent. upon the sale price in the event and in consideration of plaintiff finding a buyer for the land. After making further recitation of the history of the transaction, plaintiff pleads the second contract, and undertakes to supply the omission of a promise to pay a commission by alleging 'that at the time of signing and delivery of said contract of sale said listing contract was modified by defendants, and each of them, then and there orally ratifying said listing agreement for 5 per cent. commission, and by said defendant, and each of them, orally agreeing to pay plaintiff a commission of 2 1/2 per cent. upon the $4,200.' The original contract falls squarely within the statute of frauds. This has been so long settled that we will not discuss it further than to cite the authorities. Swartswood v. Naslin, 57 Wash. 287, 106 P. 770; Broadway Hospital v. Decker, 47 Wash. 586, 92 P. 445; Rochester v. Yesler Estate, 6 Wash. 114, 32 P. 1057; Keith v. Smith, 46 Wash. 131, 89 P. 473, 13 Ann. Cas. 975; Foote v. Robbins, 50 Wash. 277, 97 P. 103; Forland v. Boyum, 53 Wash. 421, 102 P. 34; McCrea v. Ogden, 54 Wash. 521, 103 P. 788; Muir v. Kane, 55 Wash. 131, 104 P. 153, 26 L. R. A. (N. S.) 519, 19 Ann. Cas. 1180.

Plaintiff's right of recovery, therefore, must depend upon the second contract, aided by that part of the complaint which we have quoted, and which he has sustained by his testimony, but here again we are met by the statute of frauds, which in terms provides that 'an agreement authorizing or employing an agent or broker to sell or purchase real estate for compensation or a commission must be in writing.' Section 5289, Rem. & Bal. Code.

The case viewed from this aspect falls within the case of Forlund v. Boyum, supra. In that case we said: 'The second writing is not a mere modification of the original contract so as to permit a recovery upon that theory. It is a complete, independent contract, certain in all its terms, except the amount of the commission to be paid. * * * Resort must be had to parol testimony to ascertain the amount agreed upon. Nor would the offer of the original contract prove anything without resort to oral evidence to bring it within the issues tendered by the complaint.' This case has been consistently followed by this court. The last expressions of the court are to be found in Orr v. Interlaken Land Co., 133 P. 599, and Engleson v. Port Crescent Shingle Co., 133 P. 1030.

Respondent insists, however, that inasmuch as the defendants made a general denial, and did not affirmatively plead the statute of frauds, they have waived that defense and must be held to pay the judgment rendered in the court below. They cite and rely upon the case of Moses Land, etc., Co. v Stack-Gibbs Lumber Co., 56 Wash. 529, 106 P. 207. In that case the court quoted the general rule as it appears in 9 Enc. of Pleading and Practice, 705, and respondent rests his case upon that quotation. In so far as the law of this state is concerned, the text relied on does not state an absolute rule. We think the statute is available to the defendants. They made timely objection at the time of the trial. If the pleader sets out a contract that is within the statute, the defendant may properly demur, or he may answer setting up the bar of the statute. If the pleading shows the contract to be in parol, and it is admitted without challenge, it is generally held that the defense of the statute is...