Grammer v. Skagit Valley Lumber Co.

• Decision Date: 19 May 1931
• Docket Number: 22637.
• Citation: 299 P. 376,162 Wash. 677
• Parties: GRAMMER v. SKAGIT VALLEY LUMBER CO.
• Court: Washington Supreme Court

299 P. 376

162 Wash. 677

GRAMMER v. SKAGIT VALLEY LUMBER CO.

No. 22637.

Supreme Court of Washington

May 19, 1931

Department 2.

Appeal from Superior Court, King County; Chester A. Batchelor Judge.

Action by E. S. Grammer against the Skagit Valley Lumber Company. From an order sustaining a demurrer to the complaint and a judgment dismissing the action, plaintiff appeals.

Affirmed.

McMicken Ramsey, Rupp & Schweppe and Battle, Hulbert & Helsell, all of Seattle, for appellant.

Peters Powell, Evans & McLaren, of Seattle, for respondent.

BEELER J.

The plaintiff was appealed from an order sustaining a demurrer to his complaint and from a judgment dismissing the action. The trial court sustained the demurrer on two grounds: (1) Because the complaint failed to allege that plaintiff held a real estate broker's license. (2) That the contract was within the statute of frauds.

The first question presented is: Was plaintiff employed as a real estate broker within the meaning of the provisions of the Real Estate Brokers' Act (sections 8340-1 to 8340-23 inclusive, Rem. 1927, Supp.), which provides:

'§ 8340-4. Within the meaning of this act, a real estate broker is a person who, for a compensation or promise thereof, performs one or more acts of selling or offering for sale, buying or offering to buy, negotiating or offering to negotiate, either directly or indirectly, whether as an employee of another or otherwise, the purchase, sale, exchange, lease or rental of real estate or interest therein for another person.'

'§ 8340-5. It shall be unlawful for any person to engage in the business or act in the capacity of a real estate broker within this state without first obtaining a license therefor and otherwise complying with the provisions of this act.'

'§ 8340-20. No suit or action shall be brought in the courts of this state for the collection of compensation for the performance of any of the acts mentioned in section 8340-5, without alleging and proving that the plaintiff was a duly licensed real estate broker at the time the alleged cause of action arose.'

Plaintiff in his complaint alleges that 'for many years he has been engaged in the lumbering business in this state,' and 'is acquainted with and an expert in lumber and timberlands,' and in the 'hauling and marketing of logs and lumber'; that 'the plaintiff at all times herein mentioned was well acquainted with the lumbermen of the State of Washington and the Pacific Coast; that the plaintiff knew what was necessary in the preparation of data and information generally regarding timber and timber lands and milling property, and in presenting the same for sale to prospective purchasers, all of which was well known to the officers of the defendant company.'

The complaint then sets forth that the defendant was 'the owner of a large amount of real and personal property located in Skagit County, Washington, consisting of lumber mill and personal property in connection therewith; railroad, rolling stock and equipment and other personal property in connection therewith; buildings, lands and timber, all of which constituted a going concern, but closed down and inactive' at the time of the execution of the contract on September 14, 1928.

The complaint further alleges that the plaintiff, immediately after the execution of the contract, 'entered upon its performance' and 'prepared said properties for presentation to any prospective purchasers; obtained and compiled data and information for presentation to a prospective purchaser; cruised timber owned by the defendant, and other timber adjacent and tributary thereto; prepared estimates of cost of procuring, manufacturing and disposing of logs and lumber in connection therewith; obtained options on other timber, and other data and information necessary to present to any prospective purchasers, and otherwise performed services that resulted in obtaining a buyer of all of said properties, real and personal, of the defendant, and was responsible for the consummation of the sale' for the sum of $1,500,000, and 'that there is due him for services rendered $150,000'; that payment has been demanded but refused.

Paragraph IV of the complaint alleges: 'That under the terms of said contract, the plaintiff had no right or authority to make any representations of any kind relative to said properties, or any part thereof, or to make any offers of any kind or character for the sale of said properties, but it was agreed that if the plaintiff should be responsible for the consummation of the sale of said properties as a whole, the defendants herein agreed to pay to the plaintiff compensation according to the rate specified and set forth in said contract hereto attached and made a part hereof.'

The material parts of the contract are:

'This agreement made and entered into this 14th day of September, 1928, by and between E. S. Grammer, first party, and Skagit Valley Lumber Company, a corporation, second party,

'Whereas, the second party is desirous of selling its properties both real and personal, as a whole, and the first party is interested in attempting to obtain a buyer for the properties, to which end the first party has been or may be made vice-president of the second party with authority to negotiate on behalf of the second party for the sale of its properties:

'Now, therefore, * * * it is mutually agreed, * * *

'First: The second party hereby employs the first party to endeavor to obtain a buyer for all of the properties, both real and personal. * * *

'Second: The first party is to use his best efforts to consummate a sale of the said properties of the second party as a whole, to which end the first party agrees to keep the board of trustees of the second party fully advised of all efforts made by him to consummate such sale and all steps taken by him or letters or other communications written or made by him in connection therewith.

'The authority hereby conferred by the second party upon the first party shall be the authority to negotiate and obtain offers relating to or for sale and purchase of said properties, but the first party shall have no authority of any kind or character to otherwise represent the second party or to make any offers of any kind or character for the sale of said properties or any part thereof, to anyone, or to make any representations of any kind relative to said properties, or any part thereof, binding upon the second party, or to make any agreements or incur any obligations binding upon the second party, of any kind or character whatsoever, or to incur any expenses for or on behalf of the second party binding upon it, or which it shall be obligated to pay, except such obligations, agreements and expenses as may be specifically approved by the board of trustees of the second party.

'Third: If during the term of this agreement the first party is responsible for the consummation of the sale of said properties as a whole, the second party agrees to pay the first party the following percentages of the amounts received by the second party from the sale of the said premises.'

The contract then sets forth in detail the compensation plaintiff is to receive in the event of a sale of the properties.

'Fourth: In the event that upon the termination of this agreement a bona fide offer, for which the first party is responsible shall have been made by the second party to a prospective purchaser, or by a bona fide purchaser to the second party, which said offer shall be accepted after the termination of this agreement, the first party shall be entitled to commissions hereunder as if such sale had been consummated during the term of this agreement.'

Plaintiff contends that he was not employed to make a sale of the property nor offer it for sale. He contends that he obtained no purchaser. He contends he at no time either directly or indirectly negotiated with any prospective purchasers for the sale of the property. But his claim is that he was the procuring cause of the sale. He alleges that he prepared the properties for presentation to prospective purchasers by compiling data and information, and that he cruised the timber owned by the defendant, and other timber tributary and adjacent thereto, prepared estimates of the cost of procuring, manufacturing, and disposing of logs and lumber, and obtained options on other timber and that the data he thus procured was necessary to present to prospective purchasers, and that he was responsible for the consummation of the sale. In short, plaintiff says he was not a 'broker' as the term is used in the statute, and hence the agreement in not affected by the statute.

Turning again to the agreement which is attached to and made a part of the complaint, we find it contains in part the following:

Plaintiff 'is interested in attempting to obtain a buyer'; that the defendant 'hereby employs the first party to endeavor to obtain a buyer.' The plaintiff is to 'use his best efforts in consummating a sale.' 'The authority hereby conferred upon the first party shall be to negotiate and obtain offers relating to or for the sale and purchase of said property.' The contract further provides that plaintiff 'agrees to keep the board fully advised of all offers made by him to consummate such sale and all steps taken by him or letters or other communications written or made by him in connection therewith, and that if he is responsible for the consummation of the sale of said property as a whole, the second party agrees to pay the following percentages, etc.' The contract further provides the word 'Consummation' as used herein shall mean the acceptance by the board of a bona fide offer made to it.

'Negotiate' is defined in the Oxford Dictionary: 'To hold...