House v. Erwin, 340--III
| Decision Date | 17 November 1971 |
| Docket Number | No. 340--III,340--III |
| Citation | 5 Wn.App. 737,490 P.2d 883 |
| Parties | Jim HOUSE, Respondent, v. Harold ERWIN et al., Appellants. |
| Court | Washington Court of Appeals |
John Hancock, Okanogan, for appellants.
Kelly Hancock, Omak, for respondent.
Plaintiff, Jim House, a real estate broker, brought an action against defendants, Harold Erwin, Chris E. Albrecht and Effie M. Albrecht, to recover a commission. Defendants appeal from a judgment for plaintiff.
On February 24, 1969, defendants signed a non-exclusive listing agreement on a printed form provided by plaintiff. At the time of execution, the agreement described the property as follows:
Description: 534 acres, known as Albrecht-Erwin Ranch farm or ranch described as Legal to be attached * * *; for better description see owner's title deed on record, now made a part thereof.
(Italics ours.) The lower half of the agreement set forth certain data as to acres, crop land, irrigation, improvements and general location. No legal description was contained in the document at the time it was signed. The selling price, free of encumbrances, was $175,000 with the terms open. It included 100 head of cattle and farm implements.
In late March or early April, 1969, plaintiff obtained a legal description from a title company and attached it to his copy of the listing agreement. Thereafter, plaintiff inquired as to the selling price without cattle. Defendants stated they would sell for $150,000 without cattle; further, they wanted 29 per cent down. The description and additional terms were attached to and written upon plaintiff's copy of the listing agreement by plaintiff without the knowledge or approval of defendants.
Plaintiff advertised the property in several newspapers. In late September or early October, 1969, Carl Voelckers went to plaintiff's office about closing time with a copy of plaintiff's ad in the WASHINGTON FARMER and inquired about it. Plaintiff gave him full particulars about the farm, showed him a map and pictures and told Voelckers he could go out and see it. Voelckers left alone. The next morning plaintiff telephoned Chris Albrecht, told him about his conversation with Voelckers and that he suspected Voelckers would look at the farm. Albrecht told plaintiff Voelckers had called the night before wanting to talk to Harold Erwin. In October or November, 1969, plaintiff asked Erwin about Voelckers. Erwin stated Voelckers didn't want the cattle ranch. Later in November, plaintiff made further inquiry of Albrecht who also said Voelckers was not interested.
About March 7, 1970, plaintiff saw Erwin and showed him an ad he was about to run in three newspapers. A copy of the ad appearing in the Wenatchee paper on March 16 was mailed to defendants. A few days prior to March 22, as plaintiff was driving into Omak, Erwin stopped him and told him they had sold the ranch. Erwin said he could not tell him the name of the purchaser but it was someone from the area. Later, plaintiff telephoned Erwin who still refused to reveal the name. In April, 1970, through a title company, plaintiff discovered defendants sold their farm, cattle and implements to Voelckers on contract for $175,000.
Twenty-four assignments of error are directed to the trial court's findings and conclusions, and the refusal to enter certain proposed findings, conclusions and judgment. These claimed errors raised two questions.
First, is the document entitled 'Real Estate Broker's Employment Contract' within the statute of frauds and therefore void? We reach the conclusion that it is. RCW 19.36.010 provides:
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.
Considering this statute in McKoin v. Kunes, Wash.App., 490 P.2d 735 (1971), decided this date, we said:
The rule established by these decisions is as stated in Herrmann (Herrmann v. Hodin, 58 Wash.2d 441, 364 P.2d 21 (1961)) at page 443, 364 P.2d at page 22:
In Bigelow v. Mood (1960) 56 Wash.2d 340, 353 P.2d 429, 430, we said:
Our court has rigidly adhered to this rule. Grammer v....
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House v. Erwin
...commonly known as a 'listing' agreement, unenforceable by reason of the inadequacy of the real estate description. House v. Erwin, 5 Wash.App. 737, 490 P.2d 883 (1971). In reaching that result the Court of Appeals reversed the trial court. We granted review (80 Wash.2d 1004). We reiterate h......
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House v. Erwin
...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 Because the designations of 'appellant' and 'respondent' ......
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