Henry v. Harker

• Decision Date: 26 March 1912
• Parties: HENRY v. HARKER.
• Court: Oregon Supreme Court

122 P. 298

61 Or. 276

HENRY v. HARKER.

Supreme Court of Oregon

March 26, 1912

On rehearing. Former opinion affirmed.

For former opinion, see 118 P. 205.

M.M. Matthiessen (Osgood Putnam, and Williams, Wood &amp Linthicum, on the brief), for appellant.

D.J Malarkey (Seabrook & Stott, on the brief), for respondent.

W.R. King (F.M. Saxton, on the brief), for Portland Realty Board.

McBRIDE J.

In respondent's able brief upon the rehearing he aptly compares negotiations by letter to conversations between the parties, and invokes the same rules of construction. We will treat the correspondence in this case as a written conversation between the parties and see if from that a contract arose, and, if so, what were its terms.

We may first premise that, in order for plaintiff to recover in this case, he must show that defendant put the property in his hands for sale upon commission for a definite period or until such authority should be revoked, and that within the time given him he produced a purchaser able, ready, and willing to buy at the price specified by defendant and that defendant declined to sell.

Let us now strip the correspondence of its verbiage, and see if such a contract can be made out of it: Henry to Harker, March 5 1906: "Will you sell property on First Street (describing it.) If so, what is your price. Will you place it in my hands on the usual commission basis." Harker replied March 10th: "Will sell the property for $40,000 cash. Am not putting it on the market, but would be willing that any transaction on these terms go through your hands." Henry to Harker, October 9th: "Wire best terms on gross price $40,000 on First street property." No answer. Henry to Harker, October 18th: "When I wired it was to get terms on your place. Some time ago you asked $40,000. State your lowest price and terms allowing me the usual commission." Harker to Henry, October 30th "Have decided to make improvements and lease the property. I would not sell for $40,000. Would not sell below $45,000." Henry to Harker, November 5, 1906: "Just received your letter giving price of $40,000. Will you give me a short time, say 30 days, in which to sell at $40,000, with usual commission." Harker to Henry, November 8th: "You are mistaken about my price. I said or meant to say $45,000. I am not anxious to sell but might consider a cash offer." Henry to Harker, November 14th: "It will be difficult to get $45,000. I doubt if I can get more than $42,500. Will do the best I can and if I get an offer I will wire you. I consider your price high." Henry to Harker, December 14th: "Best offer I can get is $44,000 cash." Harker to Henry, December 14th: "Will not sell at that price." Henry to Harker, December 15th: "Have sold your First Street property at your price, $45,000." Harker to Henry: "$45,000 is a good price but have decided not to sell on account of increasing values."

The correspondence is given practically in full in the original opinion, but the foregoing presents all its material features. We do not have presented to us the case of a property owner anxious to sell and seeking a broker to act for him, but rather an active and enterprising broker seeking to induce an indifferent owner to allow him to sell his property on commission. It is a part of the recent history of Portland that plaintiff's activity and advertising ability has added greatly to the increase in real estate values in that city, and no doubt it is the truth, as he observes in one of his letters to plaintiff, that "these efforts have greatly contributed to the increased value of property on First street including yours," but we are unable to construe this correspondence into a binding contract on the part of defendant. The final conclusion of the whole matter is found in the letters of October 30th and November 8th, and these, construed together, amount to this: "I would not sell below $45,000, but might consider a cash offer of $45,000." This simply amounts to saying: "If you should bring me a customer who is ready and willing to pay $45,000, I might take it or I might not." Defendant was plainly averse to tying himself up for any length of time by a positive contract, but plaintiff evidently thought that a price of $45,000 was so high that defendant would not refuse it, if a customer was found, and, acting on this presumption, made this "gentleman's arrangement" with defendant who failed to act as such when the purchaser was procured.

It is claimed that this contract is ambiguous, and that, therefore its construction is left as a...