Keith v. Smith

• Decision Date: 30 March 1907
• Citation: 46 Wash. 131,89 P. 473
• Parties: KEITH et al. v. SMITH et al.
• Court: Washington Supreme Court

89 P. 473

46 Wash. 131

KEITH et al. v. SMITH et al.

Supreme Court of Washington

March 30, 1907

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

Action by P. R. Keith and another, doing business as the Keith-Sergeant Realty Company, against Victor Hugo Smith and another. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Arthur & Hutchinson, for appellants.

Charles E. Patterson, for respondents.

CROW J.

This action was brought by the plaintiffs P. R. Keith and W. P Sergeant, copartners as Keith-Sergeant Realty Company against the defendants Victor Hugo Smith and L. B. May, to recover a commission claimed to be due on the purchase of real estate. In their third amended complaint, to which we will hereafter refer as the complaint, the plaintiffs alleged: That on November 15, 1905, the defendants employed them to negotiate for the purchase of a certain described tract of land in Pierce county. That the contract of employment was orally made. That presently thereafter a note and memorandum thereof in writing, directing the plaintiffs as to their procedure in the matter, was signed by one of the defendants in behalf of both of the defendants and delivered to the plaintiffs in words and figures as follows 'Seattle, Washington, 11-15-05. Messrs. Keith and Sergent, Tacoma, Wn.--Dear Sirs: Enclosed find contract which Mr. Smith wishes signed by Mr. Fletcher and confirmed by Rice and wife. Advise us when abstract is ready, and we will come over at once. Yours, L. B. May.' That said writing referred to the land above mentioned. That the person therein named as Mr. Smith is the defendant Victor Hugo Smith. That the person therein named as Mr. Fletcher is Donald Fletcher, who represented the owner of the land, and that the person therein named as Rice is Fred A Rice, the owner of the land. That the abstract referred to is the abstract of title to the land, and that all of said references were fully understood by the parties to this action. That the plaintiffs negotiated the purchase of the land for the defendants, which negotiation was ratified and adopted by defendants who, before the commencement of this action, actually purchased the land and made a payment thereon through the agency of the plaintiffs. That the plaintiffs' services were worth the sum of $1,250. To this complaint the defendants interposed a general demurrer which was sustained by the trial court. Thereupon the plaintiffs electing to stand upon their complaint and refusing to plead further, a judgment was entered dismissing the action, and they have appealed.

The appellants contend that the trial court erred in sustaining the demurrer, and insist (1) that the note or memorandum set forth in the complaint, aided by its allegations, is a sufficient compliance with the statute of frauds; and (2) that their contract being fully performed, they are entitled to recover the value of their services on a quantum meruit. Chapter 58, Sess. Laws 1905, p. 110, being an amendment of section 4576, Ballinger's Ann. Codes & St., reads as follows: '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 respondents, citing this section, insist that the complaint does not state a cause of action. Their contention was sustained by the trial judge, who held that the contract of employment should be in writing, and that the note or memorandum set forth in the complaint does not meet the requirements of the statute. After placing the most liberal construction upon the note or memorandum pleaded by the appellants, we fail to see how it can be held a sufficient compliance with the statute. It does not purport to authorize or employ the plaintiffs to act as brokers. It describes no particular real estate. It mentions no terms of purchase or sale, no price or time of payment, no period during which the appellants' authority, if created, was to continue, nor does it specify the amount of their commission. The alleged memorandum is so signally indefinite in its terms that it utterly fails to amount to written evidence of an agreement authorizing or employing the appellants to purchase real estate for the respondents for a commission or compensation. 'At common law, a contract employing a broker for the purchase or sale of lands need not be in writing, and he may accordingly recover compensation for services rendered under an oral contract; but this rule has been changed by statute in some states. If a statute requires a written authorization, a broker who acts under a parol contract of employment cannot recover what his services are reasonably worth as upon a promise implied by law.' 19 Cyc. pp. 219, 220; 5 Current Law, 446.

California has a statute almost identical with our act of 1905, and the Supreme Court of that state, in McCarthy v. Loupe, 62 Cal. 299, construing the same, said: 'Since the Code no express contract in a case like this can be of any avail unless in writing. This particular kind of contract can only be...