Mattieligh v. Poe, 35013

• Decision Date: 27 October 1960
• Docket Number: No. 35013,35013
• Citation: 356 P.2d 328,57 Wn.2d 203
• Parties: , 94 A.L.R.2d 464 Ottilio MATTIELIGH, Appellant, v. Dwight POE, Respondent, Leonard Demonbrun and Byron G. Ives, Defendants.
• Court: Washington Supreme Court

Page 203

57 Wn.2d 203

356 P.2d 328, 94 A.L.R.2d 464

Ottilio MATTIELIGH, Appellant, v. Dwight POE, Respondent Leonard Demonbrun and Byron G. Ives, Defendants.

No. 35013.

Supreme Court of Washington, En Banc.

Oct. 27, 1960.

Miracle, Treadwell & Pruzan, and Jerome Shulkin, Seattle, for appellant.

No appearance for respondent.

FOSTER, Judge.

Plaintiff below appeals from a judgment of dismissal. Appellant sued to recover a real-estate broker's commission paid to respondent Poe. At the conclusion of appellant's evidence, the court orally granted respondent's motion to dismiss 'on the ground that the evidence produced by the plaintiff was not sufficient to sustain his cause of action,' and the judgment recites tht plaintiff's case was dismissed because of the insufficiency of his evidence.

So circumstanced, the appellant's evidence must be considered in the light most favorable to him; that is to say, his evidence must be accepted at its face value. He is entitled to every reasonable inference to be drawn therefrom. In re Youngkin's Estate, 48 Wash.2d 432, 294 P.2d 426; O'Brien v. Schultz, 45 Wash.2d 769, 278 P.2d 322.

Appellant is an elderly foreign-born farmer, for many years employed as a garbage collector. He is unschooled, and has a very limited ability to read, write or speak the English language.

Respondent is a licensed real-estate broker.

The appellant does not claim fraud; indeed, he specifically disclaims it. The appellant, in effect, charges malpractice by the respondent broker in the practice of his profession.

The appellant's proof was that the contract prepared by respondent was at variance in many particulars with his instructions. When a broker undertakes to practice law, he is liable for negligence. It is immaterial whether the broker's attempt to prepare a contract, such as had been authorized by his client, failed because of his ignorance, stupidity, incompetence, negligence or fraud. Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16, 65 A.L.R.2d 1358. ¹ Latson v. Eaton, Okl., 341 P.2d 247.

Upon discovery of such variance in the contract, appellant sued for a modification to conform with the terms to which he had agreed. The result was an agreed rescission of the sale.

If a real-estate broker fails to exercise reasonable care and skill, he is liable to his client for the damages resulting from such failure. Shaw v. Briggle, 193 Wash. 595, 76 P.2d 1011; Western Bakeries, Inc. v. John Davis & Co., 110 Wash. 463, 188 P. 406; Smith v. Fidelity & Columbia Trust Co., 227 Ky. 120, 12 S.W.2d 276, 62 A.L.R. 1353.

If the negligence, ignorance, stupidity, incompetence or fraud of a realestate broker causes the rescission of a sale negotiated by him, one of the items of the principal's damage is the commission paid. Langston v. Hoyt, 108 Kan. 245, 194 P. 654; Crichton v. Halliburton & Moore, 154 Miss. 265, 122 So. 200; Harvey v. Cook, 24 Ill.App. 134; Fisher v. Dynes, 62 Ind. 348; 12 C.J.S. Brokers § 73, p. 164; 8 Am.Jur. 1067, 1068, § 142; Annotation, 62 A.L.R. 1357, 1362.

The appellant made a prima facie case against his broker, the respondent. Consequently, respondent's challenge to the sufficiency of appellant's evidence should have been denied, and the complaint should not have been dismissed.

The judgment is reversed and a new trial granted.

FINLEY, J., concurs in the result.

WEAVER, C. J., and HILL, DONWORTH and ROSELLINI, JJ., concur.

OTT, Judge (dissenting).

The judge who tried the case did not believe that the elderly foreign-born farmer, who had been in business for twenty years, had limited ability to understand the contract he signed. In this regard, the trial court said:

'* * * And that brings into play, as far as the Court is concerned, that the plaintiff is a very canny, shrewd individual. The Court does not believe that the plaintiff, in spite of his broken English, is not a competent individual, competent to take care of his own affairs. His experience as a cattle raiser and buyer in the open market at auction sales and that sort of thing would so indicate. He had been at it some twenty years. He even made a good deal on the commission, got it cut down considerably. Certainly he is a competent business man.' (Italics mine.)

The majority of this court find that the negligence of the broker caused appellant's contract to be cancelled. The legally constituted trier of the facts did not so find. In this regard, the court said:

'Now, then, for some reason unknown to the Court he started this action in Snohomish County, No. 59709; and for some reason the purchaser--whether he found out the time was not right for selling this real estate in smaller parcels to third parties, whether on account of the recession or what happened the Court does not know. But he does know that after this contract, Exhibit 3, was signed $150.00 monthly payments were made for some ten months; and apparently it was not until after those stopped that the plaintiff instituted his action to rescind. But this never went to court. Neither the Snohomish County Court nor any other court has ever determined that there was any fraud or misrepresentation as far as the...