Meier v. Porter
| Decision Date | 29 July 1970 |
| Parties | Lawrence MEIER, Appellant, v. Christopher J. PORTER, Respondent. |
| Court | Oregon Supreme Court |
Robert L. Burns, Gresham, argued the cause and filed briefs for appellant.
Roscoe C. Nelson, Portland, argued the cause for respondent. With him on the brief was Marvin S. Nepom, Portland.
Before O'CONNELL, C.J., and McALLISTER, SLOAN, DENECKE, HOLMAN, TONGUE * and HOWELL, JJ.
Plaintiff brought an action on an indemnity agreement executed by defendant. The trial was conducted before the court without a jury and a judgment entered for the defendant. Plaintiff appeals.
On January 6, 1967, Meier Chevrolet-Buick, Inc., an automobile agency in Reedsport, Oregon, was listed for sale with Dean Vincent, Inc., by plaintiff. In March 1967, the defendant contacted plaintiff and indicated an interest in purchasing the agency. He was advised by the plaintiff of the prior listing with Dean Vincent, Inc. On April 4, 1967, plaintiff was notified by Dean Vincent, Inc., that a qualified buyer had signed an earnest money receipt.
Plaintiff advised the defendant at his home in Michigan that Dean Vincent, Inc., had located a purchaser and the defendant immediately came to Oregon to conduct further negotiations to purchase the agency.
On May 16, 1967, the plaintiff and defendant entered into two separate agreements. One was a buy and sell agreement whereby the defendant agreed to purchase the automobile agency's assets for $50,000. The agreement contained a clause which stated:
'Paragraph 19: It is agreed between the parties that this agreement shall be binding upon buyer only at such time as the Chevrolet Division of General Motors shall grant buyer a selling agreement in Reedsport, Oregon.'
The other instrument signed by defendant was an indemnity agreement holding the plaintiff harmless from any liability to Dean Vincent, Inc., as a result of the prior listing. The indemnity agreement stated:
'Also in consideration of an agreement of even date between the parties relating to the sale of certain assets of seller to buyer, buyer shall and does hereby agree to indemnify the defend and hold seller harmless from and against any and all liabilities, obligations, assessments, suits, actions, proceedings, claims or demands asserted against seller by reason of any claim arising out of the failure of seller to keep and observe the obligations of seller which may exist or which may be claimed to exist by reason of an authorization to sell and owner's statement made to Dean Vincent, Inc. dated January 6, 1967, and in respect of any judgment, damages, losses, costs, expenses and fees (including reasonable attorney's) fees) sustained, suffered or incurred by seller on account or by reason of any such matter arising from said authorization to sell and owner's statement made by seller to Dean Vincent, Inc. dated January 6, 1967. The term seller includes Meier Chevrolet-Buick Inc. and Lawrence Meier, et ux, and Earl Meier, et ux, individually.'
The defendant did not receive the selling agreement and approval from General Motors. Later the defendant brought an action against Meier Chevrolet-Buick Inc. to recover the down payment made to plaintiff under the contract to purchase. The trial court found that Porter's failure to secure the consent of General Motors as required by Paragraph 19 of the contract excused the defendant from performance under the contract and that he was entitled to return of the down payment. On appeal to this court we affirmed. Porter v. Meier Chevrolet-Buick, Inc., Or., 89 Adv.Sh. 771, 461 P.2d 527 (1969).
Dean Vincent, Inc., also filed an action on the listing agreement against Meier Chevrolet-Buick Inc., the plaintiff Lawrence Meier and his brother Earl Meier. A judgment was entered against plaintiff individually for the commission, attorney fees and court costs. A tender of defense to the action brought by Dean Vincent, Inc., was made by plaintiff and refused by defendant who likewise refused to satisfy the judgment taken against plaintiff.
In the instant case the trial court found that the indemnity agreement and the buy and sell agreement were part of the same transaction and as the buy and sell...
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