Mele v. Cerenzie
| Decision Date | 06 March 1952 |
| Docket Number | No. 31937,31937 |
| Citation | 241 P.2d 669,40 Wn.2d 123 |
| Court | Washington Supreme Court |
| Parties | MELE, v. CERENZIE et ux. |
Cornelius E. Collier, Spokane, for appellants.
Murphy & Bantz, Spokane, for respondent.
This began as an action to recover three thousand dollars of the four thousand dollars paid a real estate broker on the sale of a half interest in certain real property, but, on the basis of a trial amendment, the plaintiff sought recovery of the entire four thousand dollars.
The complaint allegd, in brief, that John Mele, hereinafter called Mele, obtained the services of A. B. Cerenzie, hereinafter called Cerenzie, 'by conversation,' for the purpose of selling certain real property; that Cerenzie falsely and fraudulently represented to Mele that a prospective purchaser was without funds to make the down payment of ten thousand dollars and that it would be necessary for Cerenzie to obtain a loan of ten thousand dollars for the purchaser, and that, to secure the loan, he would have to pay the party making the loan a bonus of three thousand dollars, and for that reason it would be necessary for Mele to pay Cerenzie three thousand dollars in addition to the commission of one thousand dollars which had been agreed upon between them; that Mele relied upon these representations and signed an agreement to sell the property for forty thousand dollars and to pay Cerenzie four thousand dollars; that the sale was consummated and Cerenzie was paid four thousand dollars; and that thereafter Mele learned that the purchaser had not needed a loan and that Cerenzie had procured none.
A demurrer to the complaint was overruled, and this, appellant insists, was error, because it appears from the complaint that the agreement between Mele and Cerenzie whereby the latter was to receive one thousand dollars for his services was not in writing. Appellant relies upon Rem.Rev.Stat. § 5825(5), and Chamberlain v. Abrams, 36 Wash. 587, 591, 79 P. 204, and American, Inc., v. Bishop, 29 Wash.2d 95, 185 P.2d 722.
Neither the statute nor the cases are in point. The agreement which the statute declares void unless in writing is one for the payment of a commission to the agent, but it does not say that the actual authority to sell or purchase must be in writing. Stewart v. Preston, 77 Wash. 559, 137 P. 993; Pedersen v. Jones, 35 Wash.2d 180, 211 P.2d 705.
In Stewart v. Preston, supra, which was an action to recover secret profits obtained by a broker-agent, the same contention was made as in the present case. We there quoted with approval from Rathbun v. McLay, 76 Conn. 308, 56 A. 511, as follows: "To adopt the defendant's contention would be to hold the monstrous doctrine that an agent employed to do anything concerning land could with impunity be as dishonest as he pleased, and cheat and defraud his principal to his heart's content, if it chanced that his agency was not evidenced in writing." [77 Wash. 559, 137 P. 994.]
The demurrer was properly overruled.
Cerenzie pleaded as an affirmative defense the 'Agreement to Purchase' signed by the purchaser and Mele and his wife, which contained an unequivocal promise by Mele and his wife to pay Cerenzie four thousand dollars upon the closing of the transaction. Cerenzie assigns as error the admission of evidence to contradict, vary or explain the terms of this agreement, as being a violation of the parol evidence rule. Proof that a written agreement was induced by fraud is a universally recognized exception to that rule that is as well established as the rule itself. Dieterich v. Rice, 115 Wash. 365, 197 P. 1; Nelson Co. v. Goodrich, 159 Wash. 189, 292 P. 406; Gronlund v. Andersson, 38 Wash.2d 60, 227 P.2d 741. See annotation, 56 A.L.R. 13.
It was proper to admit the evidence complained of, and it...
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