Mattieligh v. Poe, 35013

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

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.

Page 204

[356 P.2d 329] 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

Page 205

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.

[356 P.2d 330] 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,...