Johnson v. Ogle
| Decision Date | 07 June 1947 |
| Docket Number | 8747. |
| Parties | JOHNSON v. OGLE et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Fourth Judicial District, Lake County C. E. Comer, Judge.
Action by Godfrey Johnson against L. C. Ogle and another to recover real estate broker's commission for alleged sale of realty. After the death of L. C. Ogle, L. D. Lathom, as administrator of his estate, was substituted as defendant. From a judgment for the plaintiff, the substituted defendant appeals.
Affirmed.
See also, Mont., 159 P.2d 337.
M. L. Parcells, of Columbus, for appellant.
Mark H Derr, of Polson, and L. D. French, of Ronan, for respondent.
Plaintiff a licensed real estate dealer, brought this action to recover an alleged commission for the sale of certain real property.
Defendant by answer alleged that no contract of employment for compensation or commission was entered into in writing or at all between plaintiff and defendant and that the alleged contract pleaded in the complaint is invalid, null and void, and barred by subdivision 6 of section 7519, Revised Codes 1935.
By agreement the cause was tried to the court without a jury. The court found for plaintiff and defendant appealed from the judgment.
The first point raised by defendant is that the court erred is striking his amended demurrer from the files. The record discloses that defendant first filed a general demurrer. The amended demurrer was both general and special. It alleged that the complaint was indefinite and uncertain in that it cannot be ascertained whether an express contract was entered into or what its terms and conditions were, and that it affirmatively shows from the complaint that the action is not upon an express contract in writing.
Defendant was not prejudiced by the action of the court in striking the amended demurrer. By answering, defendant waived the objection that the complaint was uncertain.
Pue v. Wheeler, 78 Mont. 516, 255 P. 1043.
Defendant by answer has raised the question as to the effect of the statute of frauds on the contract in question and hence has suffered no prejudice by reason of the ruling of the court in striking the amended demurrer.
The only other point relied upon by defendant is his claim that the contract sued upon was and is barred by subdivision 6 of section 7519, Revised Codes. That section reads as follows:
The propriety of the court's decision depends upon the question whether there was a sufficient written note or memorandum to comply with the requirements of the first part of this section.
The facts of the case are without conflict. Defendant presented no evidence and hence the case turns upon the sufficiency of plaintiff's proof to meet the requirements of section 7519, Revised Codes. The proof submitted by plaintiff is fairly set forth by the court's findings of fact. Summarized, those findings are as follows:
That in 1943, plaintiff and defendant, L. C. Ogle, entered into an oral agreement whereby plaintiff agreed to act as agent of Ogle to sell certain land described in the complaint; that defendant agreed to pay 5% commission on the sale price of $16,000; that plaintiff procured a purchaser, Frank Koble; that on January 26, 1944, Koble paid plaintiff $5,000 to apply as the down payment on the purchase price; that plaintiff thereupon gave Koble a receipt for that amount; that plaintiff advised defendant of the sale and on February 4, 1944, defendant Ogle came to plaintiff's office in Ronan and requested plaintiff to pay him the $5,000 in full as he needed the money, and that plaintiff could take his commission from the balance of the purchase price to be paid later; that plaintiff thereupon paid Ogle the $5,000 in full by check; that defendant Ogle thereupon gave plaintiff a receipt reading:
'Received from Godfrey Johnson
Five Thousand Dollars
Com. to be paid
For payment on place sold to Frank Koble
(Sgd) L. C. Ogle';
That the words 'Com. to be paid' were intended by the parties to mean that plaintiff's commission would be taken out of the balance of the purchase price; that on February 14th plaintiff made an assignment in writing of his commission to Koble, with the understanding that Koble would withhold the commission from the balance that he owed Ogle;
That on February 15th, Mr. and Mrs. Koble met Ogle at the office of Lloyd Wallace, attorney, in Polson for the purpose of completing the transaction; that Ogle was advised of the assignment of the commission in the amount of $800 and the purpose of making the assignment, and that that amount should be withheld from the balance of the purchase price; that Ogle thereupon took the assignment in writing from the hands of Koble, saying, 'I will pay Johnson'; that thereupon Koble paid Ogle the balance of $11,000 by check; that on March 1st Koble reassigned the commission to plaintiff and advised plaintiff of the facts concerning the final payment to Ogle; that plaintiff on March 1st wrote to Ogle, who was then residing at Columbus, as follows:
'March 1st, 1944
Mr. L C Ogle
Columbus, Mont.
Dear Lloyd:
I was informed by Mr. Koble that full settlement has been made on the property which he purchased from you, thru my agency, and that you did not settle with him for my commission, that you agreed, according to statement made by Mr. & Mrs. Koble, a copy of which is enclosed herewith, that you would make settlement for services rendered by me in the matter.
I am also inclosing copy of 'Assignment of Account' from Mr. Koble to myself.
As you did not make settlement with Mr. Koble or myself before leaving, will you therefore kindly favor me with a check in the amount due.
Godfrey Johnson.'
With the letter plaintiff enclosed a statement of the account, reading:
'Statement
March 1st, 1944
Godfrey Johnson, Realtor.
Ronan, Montana
L. C Ogle To services rendered in sale of L C Ogle, property at Ronan, Mont to Frank Koble, regular authorized 5% commission on $16,000.00 sale
Dr. $800.00.'
Defendant Ogle replied to the letter by a postal card reading:
'Columbus, Mr 6-
No other communication was received from Ogle and plaintiff brought this action.
Ogle died after the action was commenced and Lathom, as administrator, has been substituted as defendant in the action. Creditor's claim was presented and rejected.
As conclusions of law the court found that there was a sufficient note or memorandum to meet the statute; that the contract was an executed one and that...
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Olsen v. Johnston
...MCA. The note or memorandum does not have to be in any particular form and may consist of several writings. Johnson v. Ogle, 120 Mont. 176, 181–82, 181 P.2d 789, 791 (1947); Hughes v. Melby, 135 Mont. 415, 421, 340 P.2d 511, 515 (1958). The note or memorandum need not contain the entire con......