Kane v. Dawson

• Decision Date: 01 April 1909
• Citation: 100 P. 837,52 Wash. 411
• Parties: KANE v. DAWSON et al.
• Court: Washington Supreme Court

100 P. 837

52 Wash. 411

KANE v. DAWSON et al.

Supreme Court of Washington

April 1, 1909

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by M. Francis Kane against Thomas Dawson and another. Judgment for defendants, and plaintiff appeals. Affirmed.

John T Mulligan and James C. Moody, for appellant.

Willett & Willett, for respondents.

CHADWICK, J.

Plaintiff brought this action to recover a real estate commission on a contract whereby defendants made him their agent to find a purchaser for certain property owned by them. The contract was entered into on November 5, 1906, and expired November 25th following. After that day the time limit was extended until December 5th. The contract is set out in full in the case of Littlefield v. Dawson, 47 Wash. 644, 92 P 428. This case was tried by the court without a jury. At the conclusion of plaintiff's case, the court sustained a motion for nonsuit, and plaintiff has appealed.

In passing upon the motion for nonsuit the court, among other things, said: 'I am satisfied, from the evidence so far produced in this trial, that Mr. Littlefield was ready, able and willing to buy this land upon the terms specified in the contract between the plaintiff and the defendants; that the failure to carry out that arrangement was by reason of the defendants in this case changing their mind as to their desiring to sell the property at the figures quoted in the contract. The case, however, must be decided upon the legal questions involved. I think, under that contract, that it was incumbent upon the plaintiff in this case either to find a purchaser ready, willing, and able to purchase, and produce him to the defendants, or enter into a binding contract with the purchaser, so that he would be bound by the terms of his contract.' An elaborate discussion of the authorities is submitted for the purpose of showing the error of the court in this behalf. It may be that the court was in error in holding that appellant could not recover on his contract unless he had brought the parties face to face, or a contract had been entered into that could have been enforced against the vendee, if it had also been shown that the vendors had repudiated their contract. The question is not a new one, and has been decided by this court. Foster v. Taylor, 44 Wash. 313, 87 P. 358.

But we do not feel that we are bound by the reasoning of the lower court in passing upon a motion of this character. The motion calls for a review of the evidence. The question before us is, not whether the lower court arrived at a correct conclusion by...