Jennings v. Trummer

• Decision Date: 28 July 1908
• Citation: 52 Or. 149,96 P. 874
• Parties: JENNINGS et al. v. TRUMMER.
• Court: Oregon Supreme Court

96 P. 874

52 Or. 149

JENNINGS et al. v. TRUMMER.

Supreme Court of Oregon

July 28, 1908

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by J.J. Jennings and another, partners under the firm name of Jennings & Co., against L. Trummer. From a judgment for plaintiffs, defendant appeals. Affirmed.

This is an action to recover commissions for the sale of real estate. Plaintiffs allege that in December, 1904, the defendant employed them to find a purchaser for the furniture and good will of a rooming house in Portland, Or., for the price of $7,000 net to the defendant, for which they were to have for their commission such sum above $7,000 as they should be able to obtain; that on December 23, 1904, plaintiffs were negotiating a sale with Mrs. Lange as a prospective purchaser at the price of $7,750, which she was ready, able, and willing to pay therefor, and plaintiffs advised defendant of such prospective sale and gave him the name of the customer and on December 24, 1904, while plaintiffs were so negotiating with Mrs. Lange, the defendant sold the property to her for a price in excess of $7,000; that the sale was procured through the efforts of plaintiffs; and they now ask judgment for $750, the amount of their commissions thereon. Defendant, by his answer, denies these allegations of the complaint, and alleges that plaintiffs did not procure Mrs Lange as the purchaser, but that L.R. Cottrell, another real estate broker, introduced her as the purchaser to the defendant at the price of $7,250. The cause was tried by the court without the intervention of a jury, and the court found for the plaintiffs, and rendered judgment thereon, and defendant appeals.

C.M Idleman, for appellant.

Dan J Malarkey, for respondents.

EAKIN J. (after stating facts as above).

The denial of the defendant's motion for a judgment of nonsuit, interposed at the close of plaintiffs' testimony, is the only ground of error presented by the defendant in his brief. It is a general principle that, even if the evidence was insufficient to be submitted to a jury, yet the appellate court will not review the motion if such defect has been cured by subsequent testimony which is properly disclosed by the record. Bennett v. N.P.Ex. Co., 12 Or. 49, 6 P. 160; Carney v. Duniway, 35 Or. 131, 57 P. 192, 58 P. 105; Elmendorf v. Golden, 37 Wash. 664, 80 P. 264. Therefore we are at liberty to examine the whole of the evidence which is contained in the bill of exceptions in considering the error assigned.

Defendant's contention is that as the property was listed with two agents, and that Cottrell actually brought Mrs. Lange and defendant together and the sale was thus consummated, he was justified in dealing with Cottrell, and plaintiffs have no cause of action. On the 23d day of December, 1904, plaintiffs notified the defendant that they had secured Mrs. Lange as a purchaser for said property on the terms and conditions required by the defendant, and the defendant thereupon assented thereto by giving plaintiffs until January 1st to complete the transaction, and signed the following agreement to that effect, viz.: "I hereby agree to give a clear bill of sale to the furniture and good will of the rooming house, No. 323 1/2 Washington St. (known as the Raleigh Block), Portland, Oregon, which includes all the furniture on all of the three upper floors of said building, for the sum of seven thousand dollars ($7,000.00), said sale to be made by the 1st day of January, 1905; and I also agree to loan the purchaser, Mrs. Lange, four thousand dollars, said four thousand dollars to be secured by a first mortgage on said furniture, the principal to be paid off five hundred dollars each quarter, with interest. Said interest is to be at the rate of 8 per cent. per annum. It is understood that Jennings & Co. are to get their commission over and above said seven thousand dollars. Done this 23d day of December, 1904. L. Trummer." Although plaintiffs did not actually introduce Mrs. Lange to the defendant, it was not necessary that they do so. They did advise him of the prospective sale and of the name of the purchaser, and, if defendant dealt with her as the result of such information, then plaintiffs brought them together; and the evidence was sufficient to be submitted to a jury on that question. Miss Lange, who is the daughter of Mrs. Lange and was her agent in this transaction, had agreed with the plaintiffs as to the terms of the sale, except that she desired to make a deposit of only $10, instead of $100, as asked by plaintiffs. This fact is evidenced by a blank receipt drawn up in the presence of Miss Lange and read over and assented to by her, except as to the $100 deposit required thereby.

Whatever may be the rights of a real estate broker who takes a customer away from another and closes a sale between such customer and the owner, if done without the aid or connivance of the owner, yet if the owner, with knowledge of the facts, deals with the customer of the first broker, even through another agent, he will be liable to the first broker and, in view of the evidence in this...