Lamar v. Anderson

• Decision Date: 16 December 1912
• Citation: 71 Wash. 314,128 P. 672
• Parties: LAMAR et al. v. ANDERSON.
• Court: Washington Supreme Court

128 P. 672

71 Wash. 314

LAMAR et al. v. ANDERSON.

Supreme Court of Washington

December 16, 1912

Department 2.Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by James Lamar and another against Charles Anderson.From a judgment dismissing the action, plaintiffs appeal.Affirmed.

M. E Brewer, of Auburn, and Jno.Mills Day, of Seattle, for appellants.

James Hart, of Auburn, and Jay C. Allen, of Seattle, for respondent.

MORRIS J.

Appellants are real estate brokers at Auburn, and brought this action to recover upon a contract wherein respondent listed his lands with them for sale.The contract is the one usually employed in the case of the listing of lands for sale, and the complaint contains the usual allegations of compliance by appellants and the refusal to comply by respondent.At the conclusion of the hearing the court below dismissed the action, and this appeal follows.

No findings were made, and we cannot say what view the lower court took of the case.Appellants state in their brief that, at the conclusion of the hearing, they were required to elect whether they would ask for a judgment for commissions or for damages; and that, having elected to ask judgment for commissions, the court dismissed the action ruling that the action for commissions had been abandoned and the case tried as one for damages.We are not disposed to spend any time in determining the correctness or incorrectness of this ruling.There being no findings, we can only read the record and determine what judgment should have been entered; and, having done so, it is plain that the contract had been mutually abandoned.There is some question as to consideration of this abandonment, whether it was $10 as claimed by respondent, or $25, as claimed by appellants.But whatever the consideration, we hold there was a mutual abandonment of the contract, and that for this reason the judgment of dismissal was...