House v. Erwin
| Decision Date | 20 June 1974 |
| Docket Number | No. 42255,42255 |
| Citation | 524 P.2d 911,83 Wn.2d 898 |
| Parties | Jim HOUSE, Petitioner, v. Harold ERWIN et al., Respondents. |
| Court | Washington Supreme Court |
Kelly Hancock, Omak, for petitioner.
John Hancock, Okanogan, for respondents.
Plaintiff, a real estate broker, brought this action in the Okanogan County Superior Court to recover a real estate commission from defendants. Plaintiff prevailed in the trial court. The matter was appealed to the Court of Appeals, Division III, and there the judgment was reversed. House v. Erwin, 5 Wash.App. 737, 490 P.2d 883 (1971). Plaintiff petitioned this court to review and his petition was granted.
Because the designations of 'appellant' and 'respondent' might prove confusing, we shall refer to the parties as 'plaintiff' and 'defendant'.
Plaintiff is a licensed real estate broker with an office in Okanogan county between Okanogan and Omak. On February 24, 1969, the defendants, Harold Erwin and Chris E. Albrecht, signed a document which was intended to be a nonexclusive real estate listing agreement. The defendant, Effie M. Albrecht, wife of Chris E. Albrecht, did not sign the agreement but was present at the signing, at several conversations, and talked to plaintiff on the telephone on a number of occasions. The trial court found that she ratified the agreement. Such finding was not challenged, and, therefore, is not now before the court.
The question of whether the plaintiff was the procuring cause of the sale, likewise, is not before the court. The trial court found, 'the plaintiff was the procuring cause of the sale.' The Court of Appeals did not consider that matter, saying 'it is unnecessary for us to decide whether plaintiff was the procuring cause of the sale.' The finding of the trial court was based on substantial evidence and we are firmly committed to the rule that a finding of fact by the trial court will not be disturbed if based on substantial evidence. Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959); Coy v. Raabe, 77 Wash.2d 322, 462 P.2d 214 (1969); Sylvester v. Imhoff, 81 Wash.2d 637, 503 P.2d 734 (1972).
The Court of Appeals reversed the trial court on the issue of the sufficiency of the legal description contained in the real estate broker's employment contract, commonly known as a 'listing agreement'. House v. Erwin, Supra. That was the only matter relied upon by the Court of Appeals for reversal and it is the only question before this court.
Defendants contend the description is inadequate to comply with RCW 19.36.010. The contract is shown in the accompanying illustration.
The trial court found:
The Court further finds that the said agreement did have attached to it a proper legal description of the real and personal property, and that the plaintiff was authorized under the agreement to attach said description, and he did attach the same in accordance with the authority given him.
The finding of the trial court is based on substantial evidence. As stated above we are firmly committed to the rule that a finding of fact of a trial court will not be disturbed if based on substantial evidence. The quoted finding brings this case within the rule permitting the broker to insert a correct legal description when specifically authorized to so do. Edwards v. Meader, 34 Wash.2d 921, 210 P.2d 1019 (1949); Noah v. Montford, 77 Wash.2d 459, 463 P.2d 129 (1969); McKoin v. Kunes, 5 Wash.App. 731, 490 P.2d 735 (1971).
The listing agreement was signed February 24, 1969. At that time there was snow on the ground and it was difficult, if not impossible, for plaintiff to adequately view the premises. There had been telephone discussions before that date, but before February 24, 1969 it had not been possible for plaintiff even to get to the dwelling on the property. It was not until April of 1969 that plaintiff could go over the property. In April, Mrs. Albrecht telephoned plaintiff, Jim House, and stated the snow was off the ground and the property dry enough to walk over.
At the time of signing the listing agreement there was considerable discussion of various matters. It was agreed the listing would not be exclusive, which provision was inserted at the insistence of Mr. Erwin. Plaintiff told the defendants he would get the description from the courthouse or from the title company. Plaintiff also informed defendants that a description found on a tax statement often was not an adequate legal description, and carefully inquired if the property was exactly as defendants had purchased it, with nothing added or subtracted.
Defendant Erwin gave a map or maps to plaintiff showing the property, and plaintiff also drew a map to scale from the legal description. The maps were discussed with defendants and there was discussion of whether a tract of land across the road was a part of the subject property. Plaintiff informed defendants the legal description did not include the land across the road.
The map drawn by plaintiff bears a marking '4/69' and the parties placed the time they saw and discussed it as 'in the spring of sixty-nine'. The ultimate purchasers did not enter into the matter until late in the same year, 1969, some time after September 18, 1969, the date of plaintiff's advertisement in the Washington Farmer which was seen by the purchasers. The actual contract for sale of the property from deendants to the purchasers was not signed until April 2, 1970.
The facts clearly indicate the correctness of the court's finding of fact quoted above, and that not only was the plaintiff authorized to supply the legal description, but that such description was actually supplied with the knowledge and approval of defendants.
Plaintiff did not claim to have shown the actual written description to defendants, but did show them the map and aerial photographs and fully discussed the property lines with them. He even called defendants' attention to the fact they were putting water on land they did not own.
There is another reason to reverse the decision of the Court of Appeals and reinstate the decision of the trial court. Although there are cases holding a complete legal description is required by RCW 19.36.010, that is clearly not what the statute states. RCW 19.36.010 reads in pertinent part:
In the following cases, specified in this section, any agreement, contract and promise shall be void, unless such agreement, contract or promise, or some note or memorandum thereof, be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized, that is to say: . . .
(5) An agreement authorizing or employing an agent or broker to sell or purchase real estate for compensation or a commission.
This statute was enacted for the purpose of preventing fraud. The statute of frauds enacted by the legislature of Washington Territory in 1854, Laws of 1854, § 2, p. 403, did not contain subsection (5) which is involved here. That was added by Laws of 1905, ch. 58, § 1, p. 110.
The purpose of the enactment was well stated by Finley, J. in Miller v. McCamish, 78 Wash.2d 821, 828, 479 P.2d 919, 923 (1971) wherein it was said:
As we have previously noted, there can be little question as to the intent of the legislature in the enactment of RCW 19.36.010 and RCW 64.04.010. The clear purpose and intent behind these statutes of frauds is the prevention of fraud. To apply these statutes in such a manner as to promote and encourage fraud would be to Defeat the clear and unambiguous intent of the legislature in their enactment.
Clearly, the fraud sought to be prevented by RCW 19.36.010(5) relates to disputes as to the amount of commission or compensation, the term of the listing agreement, if exclusive or nonexclusive, and most important, if any agreement existed at all. It seems scarcely conceivable for a dispute to arise over the identity of property listed with a broker.
A better rule was stated in Pray v. Anthony, 96 Cal.App. 772, 777, 274 P. 1024, 1026 (1929), wherein it was said:
As uniformly held by numerous decisions in this state upon the subject, the essential part of a contract to employ a real estate broker, so far as the statute of frauds is concerned, is the matter of the employment and consequently need not describe the land specifically, if the terms of the employment can be made definite without it.
An even more interesting case is Central Idaho Agency, Inc. v. Turner, 92 Idaho 306, 442 P.2d 442 (1968), which involved a contract on exactly the same printed blank as is involved herein. Idaho, just as Washington, had a long line of cases holding a perfect description of the property was essential to a real estate broker's contract of employment. The Idaho court overruled several cases inconsistent with the Central Idaho Agency case stating at page 311, 442 P.2d at page 447:
A contract employing a broker to find a purchaser of real property, is not a contract to sell, convey, or encumber real property or any interest therein. It is purely a contract of employment for services to be performed by the broker for a commission to be paid upon the occurrence of certain specified events. Ordinarily such a contract would not support an action to compel conveyance of the property involved. The present action does not seek any such relief. It was brought solely for the recovery of the commission provided for in the agreement. In such a case the description in the agreement is sufficient where it is shown that there is no misunderstanding between the property owner and the broker as to the property to be offered for sale, and where it is sufficient to enable the broker to locate the property, show it, and point out its boundaries to the prospective purchaser. In this case both plaintiff and defendant knew from the description contained in the agreement that the property to be sold was the entire 'Clara...
To continue reading
Request your trial
-
State v. Byers, 43491
...9 (1974); State v. Smith, 84 Wash.2d 498, 527 P.2d 674 (1974); State v. Chapman, 84 Wash.2d 373, 526 P.2d 64 (1974); House v. Erwin, 83 Wash.2d 898, 524 P.2d 911 (1974). Sergeant Franklin, the arresting officer who testified on the subject of the arrest, acknowledged that he 'told' the defe......
-
State v. Byers
...9 (1974); State v. Smith, 84 Wash.2d 498, 527 P.2d 674 (1974); State v. Chapman, 84 Wash.2d 373, 526 P.2d 64 (1974); House v. Erwin, 83 Wash.2d 898, 524 P.2d 911 (1974). The majority's statement that the facts here should be reviewed de novo because constitutional rights are at stake turns ......
-
In re Arnold
...on by the public and impact liberty and property interests. See, e.g., Payne , 501 U.S. at 828, 111 S.Ct. 2597 ; House v. Erwin , 83 Wash.2d 898, 909, 524 P.2d 911 (1974). Overturning such cases can cause substantial harm to individuals who are simply trying to follow the law. In such circu......
-
Kreck v. Spalding
...there is substantial evidence upon which these findings could be based. The supreme court should not disturb them. House v. Erwin, 83 Wash.2d 898, 900, 524 P.2d 911 (1974). Defendant finally contends the initial police investigation leading to the issuance ...