J. E. Houtchens Co. v. Nichols

• Decision Date: 13 August 1914
• Docket Number: 11960.
• Court: Washington Supreme Court
• Parties: J. E. HOUTCHENS CO. v. NICHOLS et ux.

142 P. 674

81 Wash. 238

J. E. HOUTCHENS CO. v. NICHOLS et ux.

No. 11960.

Supreme Court of Washington

August 13, 1914

Department 2. Appeal from Superior Court, Walla Walla County; Edward C Mills, Judge.

Action by the J. E. Houtchens Company against B. F. Nichols and wife. Judgment for defendants, and plaintiff appeals. Affirmed.

Oscar Cain, of Spokane, for appellant.

John Pattison, of Spokane, for respondents.

MOUNT J.

On June 4, 1912, the appellant as a real estate broker caused the respondent B. F. Nichols and one A. B. Olson to enter into a contract for the exchange of properties. The first paragraph of this contract recites that the respondent B. F. Nichols in consideration of the agreement to be performed by Mr Olson, will convey by warranty deed the lot upon which is located a certain 56 room apartment house in the city of Spokane. The second paragraph recites that A. B. Olson will convey certain real estate in Walla Walla county to Mr Nichols in exchange for the Spokane property. The third paragraph provides that if either of the parties to the contract fail to perform the agreement, he shall be held unto the other in the sum of $2,000 as liquidated damages. The contract then recites:

'Each party agrees to pay J. E. Houtchens Company a commission of 2 1/2% or such as agreed upon.'

The contract was signed by Mr. Nichols and Mr. Olson. Mr. Nichols failed to comply with the agreement. The appellant then brought this action, alleging that the property belonging to Mr. Nichols was worth $78,000, and that its commission thereon was 2 1/2 per cent., amounting to $1,950. For a second cause of action it alleged that the property of Mr. Olson was worth $80,000, and seeks to recover damages in the sum of $2,000 for the loss of its commission by reason of the failure of Mr. Nichols to comply with his contract. After the appellant had offered the contract in evidence, the trial court was of the opinion that it was within the statute of frauds, and for that reason directed a verdict in favor of the respondents. This appeal followed.

The sole question involved is the sufficiency of the contract. The statute at section 5289, Rem. & Bal. Code, 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.'

The contract in this case was a contract between Mr. Nichols and Mr. Olson. The contract did not state the value of either property, but it recited, as above stated, that each party agrees to pay a commission of 2 1/2 per cent., or such as agreed upon. It is plain, we think, that the words, 'a commission of 2 1/2%, or such as agreed upon,' is not an agreement to pay a definite commission, but it is an agreement merely for a commission to be subsequently agreed upon. It might be less or more than 2 1/2 per cent.

In Forland v. Boyum, 53 Wash. 421, 102 P. 34, where the contract was 'their agreed upon commissions,' we said:

'While there are cases holding that, under a statute similar to our own, the terms of the broker's contract do not have to be set out in the memorandum or writing required by statute, the exact question has been before this court in the case of Foote v. Robbins, 50 Wash. 277, 97 P. 103, and in the case of Keith v.

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