McGuire v. Sinnett

• Decision Date: 23 February 1938
• Citation: 76 P.2d 472,158 Or. 390
• Parties: McGUIRE v. SINNETT.
• Court: Oregon Supreme Court

76 P.2d 472

158 Or. 390

McGUIRE v. SINNETT.

Supreme Court of Oregon

February 23, 1938

Department No. 2.

Appeal from Circuit Court, Multnomah County; James P. Stapleton Judge.

Action to recover commissions under contract for sale of realty by Frank L. McGuire against E. C. Sinnett. Judgment for the plaintiff, and defendant appeals.

Affirmed.

B. G. Skulason and Francis F. Hill, both of Portland (Skulason & Skulason and Francis F. Hill, all of Portland, on the brief), for appellant.

Phelps & Burdick, of Portland, for respondent.

BAILEY Justice.

On May 23, 1936, the defendant engaged the plaintiff, a duly registered real estate broker of the state of Oregon, to act as his agent for the sale of certain residential property owned by the defendant, in the city of Portland. The contract of employment was on the usual printed form of exclusive agency agreement of the Portland Realty Board, but across the face of it were written in ink the words "Non Exclusive" and lines were drawn in ink through certain provisions. After setting forth the standard rates of commission fixed by the Portland Realty Board-the commission on city property being shown as 5 per cent. on the first $60,000-the contract as far as material here is as follows:

"Portland, Oregon, May 23, 1936.

"To Frank L. McGuire:

"For value received, you are hereby employed and authorized to offer for sale, exchange or conveyance, and are given the exclusive right to sell, exchange or convey the property described on the back hereof at the price and terms there noted, or at such price and terms as I may hereafter authorize or agree to. You are hereby authorized to accept a deposit on the purchase price of said property and, in my name (or otherwise) to execute and deliver a binding, written contract for the sale, exchange or conveyance thereof. In the event of any sale, exchange or conveyance of said property during the life of this contract, or that you find a buyer ready and willing to enter into a deal or contract for said price and terms or on such other terms and price as may be agreed to by me, or place me in touch with a buyer to or through whom, within ninety days after the expiration hereof, I may sell, exchange or convey said property, or if you are the procuring cause of said sale, exchange or conveyance, *** I hereby agree to pay you in cash for your services in connection with this contract, the regular commission fixed by the Portland Realty Board (as above scheduled), and that this contract may also be enforced by any other remedy legal or equitable and, in case of suit or action on this contract, will in addition thereto pay such additional sum as the court may adjudge reasonable for plaintiff's attorney's fees and court costs. ***

"This agreement expires on Aug. 23, 1936, but will continue in force thereafter as a nonexclusive listing in every respect as above set forth until canceled by owner in writing. ***

"E. C. Sinnett (Seal)."

On the back of the card appear the description of the property by street number, the sale price of $9,750, the amount of down payment, and other details concerning the house and lot offered for sale.

The complaint alleges the making of the contract and the terms and conditions as above shown. It further alleges that during the time the said contract was in force and effect the "plaintiff did procure one Mr. and Mrs. Bohmann, who were ready, able and willing to purchase said premises, and did place the defendant in touch with said Mr. and Mrs Bohmann and said premises were sold by the defendant to said Mr. and Mrs. Bohmann, and there became due and owing from the defendant to the plaintiff" a commission of 5 per cent. of the purchase price of $9,750. It is also alleged that $125 is a reasonable amount to be allowed as attorneys' fees.

The defendant admits the allegations of the complaint as to execution of the contract and the legal effect thereof as set forth in the complaint, but denies the remainder of the complaint, excepting the allegation that the agreement contained a provision for the payment of attorneys' fees.

The case was tried to the court without a jury. The court found that the contract was made, and:

"That while said contract was in force and effect said plaintiff did procure a purchaser, namely: Louis Bohmann, and did place the defendant in touch with said purchaser while said contract was in full force and effect and said purchaser was ready, able and willing to purchase said premises, and did, while said contract was in full force and effect, purchase said premises from said defendant at a price agreeable and acceptable by said defendant, of $8,600, and that the plaintiff was the procuring cause of said sale and there became due and payable to the plaintiff 5% of said $8,600.00, or four hundred thirty ($430.00) dollars."

The court further found that $100 was a reasonable amount to be allowed as attorneys' fees.

At the time of entering into the contract, the defendant instructed the plaintiff that before showing the house he should arrange with the defendant or with the tenant for such inspection. On August 19, 1936, Mr. Goldenberg, a real estate agent connected with the plaintiff's office, called the defendant's home and when he was unable to find him there, advised Mrs. Sinnett that he had a prospective purchaser to whom he wished to show the property the following day. During the next day Goldenberg, accompanied by Mr. and Mrs. Bohmann and a friend of theirs, met the defendant at his residence. The defendant's home and the house that he had for sale had both been built by defendant. After showing the prospective purchaser through his home, the defendant went with Goldenberg, the Bohmanns, and their friend to the property which he had listed with the plaintiff for sale. They did not find the tenants at home and could not gain entrance to the house, but they remained on the premises from one-half to three-quarters of an hour. During that time, as well as during the interview at defendant's home, the question of purchase of the property was discussed by the parties at some length. The Bohmanns expressed a desire to inspect the interior of the house, and the defendant promised Goldenberg that he would arrange for such inspection the following day and would notify Goldenberg of the time appointed.

Mr. Bohmann, after reading an advertisement of a house for sale in Portland by Cooley-Reinhart Company, which from the description seemed to meet his requirements, got in touch with that firm and was taken by one of its agents and shown the identical property that had been shown him the previous day by Goldenberg. The advertisement did not indicate the location of the property and when Bohmann was taken there by the agent of Cooley-Reinhart Company he told the agent that the property had been shown to him the previous day by Goldenberg.

When the defendant did not telephone Goldenberg the day after the latter showed the property to the Bohmanns, Goldenberg, about 4 o'clock that afternoon, called Bohmann and was advised by the latter that he had been shown the Sinnett property that day by Cooley-Reinhart Company. On the same day or the following day Mr. Parrott, the plaintiff's sales manager, telephoned the defendant, told him that Cooley-Reinhart Company had shown the property to Bohmann and stated to him that the Bohmanns were "our customers." The defendant answered that what he was interested in was "who brought the earnest money receipt."

The property here involved was listed by the defendant with the plaintiff at a price of $9,750, on May 23, 1936. The defendant on August 3, 1936, entered into a contract with Cooley-Reinhart Company similar to the one he had with the plaintiff, except that the property was therein listed at $9,250. After the Bohmanns had twice been shown the property by Cooley-Reinhart Company, Bohmann made an offer of $8,500, and after some negotiating the defendant sold the property to him for $8,600, on an understanding with Cooley-Reinhart Company that the defendant was to receive $8,300 net, and that any amount above that figure might be retained by Cooley-Reinhart Company as brokers' commission.

The defendant did not see the Bohmanns from the time that he was introduced to them by Goldenberg until after the agent of Cooley-Reinhart Company had arranged for the sale of the property to them for $8,600. Under date of September 1, 1936, Bohmann made an offer to Cooley-Reinhart Company of $8,500 for the property and deposited $250, for which he was given an earnest money receipt.

Before any commission had been paid by the defendant to Cooley-Reinhart Company, the plaintiff in a letter dated September 5 wrote to the defendant, calling his attention to the fact that the plaintiff had put him in touch with the Bohmanns and that plaintiff would expect a commission from the defendant if the property was sold to the Bohmanns.

Previous to final consummation of the deal with the Bohmanns, the defendant on September 9, 1936, exacted from Cooley-Reinhart Company a written agreement that in consideration of the payment by defendant of commission to Cooley-Reinhart Company for the sale of the property by it, the Cooley-Reinhart Company, in the event that the plaintiff in this case should institute action against the defendant to recover commission for the sale of the property and prevail, would satisfy any judgment recovered in such action against defendant and pay all expenses of the litigation.

Most of the foregoing statement is derived from evidence that was uncontradicted. Bohmann testified that he had a talk with Goldenberg shortly after the latter showed him defendant's property, and that he then advised Goldenberg of the fact that he had been shown the...