Jimison v. Frank L. McGuire, Inc.

• Decision Date: 07 September 1960
• Citation: 355 P.2d 222,223 Or. 499
• Parties: E. L. JIMISON and Jewel A. Jimison, Respondents, v. FRANK L. McGUIRE, INC., a corporation, Appellant, and T. I. Rogoway, Defendant.
• Court: Oregon Supreme Court

Page 222

355 P.2d 222

223 Or. 499

E. L. JIMISON and Jewel A. Jimison, Respondents, v. FRANK L. McGUIRE, INC., a corporation, Appellant, and T. I. Rogoway, Defendant.

Supreme Court of Oregon, Department 2.

Argued and Submitted June 15, 1960.

Decided Sept. 7, 1960.

Clifford E. Nelson, Portland, argued the cause for appellant. On the brief were Phelps, Nelson & Shepherd.

Dwight L. Schwab, Portland, argued the cause for respondents. On the brief were Hutchinson, Schwab & Burdick.

Before McALLISTER, C. J., and PERRY, SLOAN, O'CONNELL, and MILLARD, JJ.

PERRY, Justice.

Plaintiffs brought this action to recover damages, arising from fraud, against defendants Frank L. McGuire, Inc., an Oregon corporation doing business as a real estate broker, and T. I. Rogoway, employed as a salesman. The jury returned a verdict against both defendants for the sum of $8,700, and the defendant Frank L. McGuire, Inc., appeals.

For convenience, in this opinion we will refer to the defendant Frank L. McGuire, Inc., as McGuire and to the defendant T. I. Rogoway as Rogoway.

The record discloses that plaintiffs listed their home for sale with McGuire and that when McGuire was unable to find a cash purchaser it was agreed that this home should be exchanged for other property. After a series of involved trades, not necessarily pertinent to the issues in this case, the plaintiffs found themselves the owners of a store building and a grocery business operated therein. Plaintiffs not wishing to continue with this property, sold and disposed of most of the stock of merchandise, retaining only the store fixtures and the frozen food locker equipment, and listed the building and equipment with McGuire for sale at a price of $30,000. The plaintiffs informed Rogoway, an agent of McGuire, that they were interested in purchasing a farm. Rogoway noticed an advertisement of another real estate broker which listed for sale a farm in Clackamas county and contacted Mr. Cronin, the broker. A Mrs. Pyle had listed the farm with Mr. Cronin. Sometime later an agreement was worked out through the defendants for an exchange of the business building and equipment for the farm property. It was out of this exchange that this litigation arose.

Mrs. Pyle informed Rogoway that if he would find a purchaser for the equipment and an operator of the grocery store she would be interested in making the exchange with the plaintiffs. Rogoway agreed to try to find a purchaser and produced as purchasers a Mr. and Mrs. Clifford, who were represented to be the owners of a slaughterhouse of the value of $16,000.

The plaintiffs told Rogoway they were willing to make the exchange with Mrs. Pyle and would assume the mortgage upon the farm land if Mrs. Pyle would assume the mortgage indebtedness upon the store building and execute a second mortgage in the sum of $8,700, which would represent the balance of the difference in the agreed values of the properties.

A contract for the exchange of these properties was then drafted by Rogoway and signed by the plaintiffs, but not by Mrs. Pyle as she did not want to operate a grocery business. At this point, Rogoway advised the plaintiffs he had found a Mr. and Mrs. Clifford who had agreed to purchase the grocery store equipment from...