Kneeland v. Shroyer

Decision Date16 July 1958
Citation328 P.2d 753,214 Or. 67
PartiesMillen F. KNEELAND, doing business under the firm style and name of Tonquin Realty Company, Respondent, v. George SHROYER, Appellant, Kenneth O. Watkins, Defendant.
CourtOregon Supreme Court

Edward A. Butler, Eugene, and Harry G. Spencer, Salem, argued the cause for appellant. With Spencer on the brief were Harris, Butler & Husk and Vernon D. Gleaves, Eugene.

Orval N. Thompson argued the cause for respondent. On the brief were Weatherford & Thompson, Albany.

Before PERRY, C. J., and LUSK, WARNER and KESTER *, JJ.

LUSK, Justice.

This is an action to recover a commission or finder's fee based on a written agreement which called for payment to the plaintiff by the defendants, George Shroyer and Kenneth O. Watkins, of $50,000. Under the terms of the agreement only a first payment of $25,000 was due at the time this action was commenced. Recovery of that amount was sought, and in a jury trial a verdict for the amount prayed for was returned against the defendant Shroyer. Watkins was exonerated. Shroyer (hereinafter referred to at times as the defendant) has appealed from the consequent judgment.

The agreement sued upon was signed by Watkins purporting to act for himself and Shroyer. The latter contends that Watkins had no such authority and assigns this as one of the grounds of a motion for a directed verdict, which the court denied. A full statement of the evidence, therefore, becomes necessary.

The plaintiff, Millen F. Kneeland, is a real estate broker, duly licensed under the laws of this state, doing business under the assumed name of Tonquin Realty Company. During the period with which the case is concerned Mrs. Ida Mae Wolfe was employed by the plaintiff as a real estate broker and salesman. She was duly licensed to act in those capacities. For about two years prior to May 10, 1954, Mrs. Wolfe had been endeavoring to effect a sale of the assets of Blue River Sawmills, Ltd. (hereinafter called Blue River), a corporation of the province of British Columbia, all the stock in which, except three shares, was owned by W. H. L. Jones, of Victoria, B. C. The principal assets of the corporation consisted of what are described as private perpetual licenses for the cutting of timber on approximately 50 limits (a limit is approximately a section) of land in British Columbia. Mrs. Wolfe had made 17 or 18 trips to the property, had taken some 47 people there, and discussed the matter with probably 150 people.

On March 1, 1954, in Vancouver, B. C., Mr. Jones signed and delivered to Mrs. Wolfe a writing addressed to Tonquin Realty Company in which he agreed to pay to the plaintiff a commission of $50,000, in the event of a sale of Blue River satisfactory to Jones in the year 1954 to any person whose name appeared in a list of prospective purchasers attached to such agreement, or to a company or corporation in which any such prospective purchasers might be financially interested, and including any associates they might bring into the purchase. Cecil Ford was one of the men whose name appeared on this list and whom Mrs. Wolfe had taken to see the property. About the middle of March 1954 Mr. Ford introduced the defendant, Kenneth O. Watkins, to Mrs. Wolfe at her home in Portland. Watkins informed Mrs. Wolfe that his business was finding timber for Mr. George Shroyer, and that he was paid 50 cents a thousand for timber which he found and Shroyer bought. They discussed the Blue River timber, and Mrs. Wolfe showed Watkins a prospectus that had been prepared by Jones, a cruise of the timber, and aerial photographs which she had had made. They arranged to meet in Vancouver, B. C., prior to going up into the timber. On March 31 or April 1, 1954, Mrs. Wolfe met Watkins at the Vancouver Hotel in Vancover, B. C. He told her that he wished to go to see the timber alone. She showed him Jones' agreement to pay the plaintiff a commission of $50,000. Watkins went to his room and telephoned to H. R. McIntyre, of Victoria, B. C., who was Jones' attorney-in-fact, and received from McIntyre confirmation that Jones had committed himself to pay Kneeland a $50,000 commission on the sale of the Blue River assets. Thereupon Watkins brought back and delivered to Mrs. Wolfe a signed agreement reading as follows:

'Vancouver, B. C.

'April 1st, 1954

'Tonquin Realty Company

'604 American Bank Bldg.,

'Portland, Oregon

'Attention: Ida M. Wolfe


'If we buy the assets of the Blue River Sawmills Limited at any price which may be negotiated, we will pay to you a commission or Finder's Fee of $50,000.00 to be paid as follows:

'One-half when the final papers are signed and the

'Balance in two equal annual instalments.

'Very truly yours,

'Kenneth O. Watkins

'George Shroyer

'By Kenneth O. Watkins

'Kenneth O. Watkins' It is this agreement upon which this action is based. Watkins typed in his own name and Shroyer's and signed the agreement for both. According to Watkins' testimony, Mrs. Wolfe had suggested such an agreement the night before.

Four or five days later, on his return to Vancouver from inspecting the timber, Watkins met Mrs. Wolfe and expressed enthusiasm about the timber and said that he thought Shroyer would buy it, and 'he again told me,' as Mrs. Wolfe testified, 'that they would want to make their own negotiations.' Mrs. Wolfe had previously been furnished by Jones with a list of creditors of Blue River together with the amounts owing them, and had endeavored to bring about some reductions in their claims. At this meeting Watkins told her to stay away from the creditors, that they preferred to do it themselves.

On the same day that Watkins signed the agreement which he gave to Mrs. Wolfe the latter executed and delivered to Frederick J. G. Johnson at Vancouver, B. C., the following writing:

'April 1, 1954


'Fredrick J. G. Johnson:

'Providing a sale is consummated between, Ken Watkins and/or George Shroyer and Tonquin Realty Co., I agree to pay $5,000.00 out of closing moneys received to, F. J. G. Johnson for professional assistance rendered.

'Tonquin Realty Co.

'by Ida Mae Wolfe'

Mr. Johnson in his testimony described his occupation as that of a consulting forester, and the services for which Mrs. Wolfe agreed to pay him $5,000 seem to have been of a technical nature to aid Mrs. Wolfe in effecting a sale of the Blue River assets.

About the middle of April Shroyer and Watkins made a trip to the Blue River property and spent three days looking over the timber.

Under date of April 22, 1954, the plaintiff wrote a letter to McIntyre, Jones and one George Leith (Jones' bookkeeper) from which we quote the following paragraph:

'We have heretofore orally discussed the fact that we have an agreement with Shroyer and Watkins regarding the payment by them to us of the commission and their offer to you will be a net offer without considering commissions. At the time of closing we will execute proper releases and agreements to cover a release of you from liability for commission upon having received from them appropriate payments.'

The next episode concerns the exchange of the following telegrams:

'1954 May 4 AM 9 07

'Philomath Org

'M R McIntyre

'McIlree and McIntyre

'629 View St Victoria

'I Offer Eighty Five Thousand Dollars For All Stock In Blue River Sawmills Ltd One Half To Be Paid In Fifty Four One Half Fifty Five With Some Payment When Contract Signed Will Appreciate Wire Accepting Offer Will Be Victoria Next Monday To Make Contract

'George Shroyer'

'May 4, 1954

'Mr. Kenneth Watkins

'1965 Brook Lane

'Corvallis Oregon Telephone 3-4793

'Your Offer As Per Telegram May 4 Accepted Subject To Completion Of All Arrangements By Monday May 10 Terms $85,000.00 To Jones Fifty Per Cent In 1954 And Fifty Per Cent In 1955 Purchaser To Assume Timber Contracts And Pay Commission To Tonquin Realty Purchaser To Pay Creditors Of Company Guaranteed Not To Exceed $76,000.00 Net Any Saving Below That Sum To Be Credited To Purchaser Letter Follows

'(signed) W. R. McIntyre'

The evidence concerning these telegrams is as follows: Shroyer's home was in Philomath, Watkins' in Corvallis. On the morning of May 4 Watkins went to Shroyer's home, told him that someone else was interested in the timber, and that there was need to act promptly. Watkins testified that he telephoned from Shroyer's home to McIntyre in Victoria, and had two lengthy conversations with him. He doubted whether the commission was discussed over the telephone, and said that 'the only point of bickering there was whether they were going to make concessions, which they finally made.' After discussing the matter with Shroyer, they agreed on the terms of an offer, and Shroyer told him to send a telegram. Watkins then telephoned the message to the telegraph office. Shroyer was not in the room from which he telephoned and did not hear him. While this telegram was sent over Shroyer's name, the answer from McIntyre, it will be noticed, was addressed to Watkins at his home in Corvallis and his telephone number was added. It is a reasonable inference that Watkins had suggested to McIntyre in his conversation over the telephone that this be done. The McIntyre telegram was delivered to Watkins at his home in Corrallis, and, according to the latter's testimony, he notified Shroyer over the telephone that 'the offer had been accepted.' He did not, he swore, read the telegram to Shroyer.

Shroyer testified that he told Watkins to send a telegram, but did not tell him what to put in it. He also testified that Watkins did not put in the telegram what he told him; that he told him to see what kind of a deal he could make. Finally, he conceded that he agreed to the amount of the offer stated in the telegram, but there was one mistake, that is, the telegram said 'stock' in the corporation and he knew nothing about stock. His testimony agrees with Watkins' that the latter called him in the evening and advised him that...

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  • Gordon Creek Tree Farms, Inc. v. Layne
    • United States
    • Oregon Supreme Court
    • February 7, 1962
    ... ... Kneeland v. Shroyer, 214 Or. 67, 93, 328 P.2d 753; Glaser v. Slate Const. Co., 196 Or. 625, 639, 251 P.2d 441. Had the defendants been diligent in doing ... ...
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    ... ... However, we have held that ORS 41.580(1) does not apply when either party has fully performed within one year. Kneeland v. Shroyer, 214 Or. 67, 82-88, 328 P.2d 753 (1958). And we have also held that, for purposes of the statute of frauds, when an employer offers ... ...
  • Wall v. S.E.C. Co., Inc.
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    ... ... Davis, 252 Or. 472, 474--475, 450 P.2d 758 (1969); Hage et ux. v. Harvey et al., 210 Or. 652, 656--657, 313 P.2d 448 (1957); Kneeland v. Shroyer, 214 Or. 67, 89, 328 P.2d 753 (1958). In any event, part performance, of which there was evidence in this case, also provides a defense ... ...
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